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I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part V: The Face of an Institution: Beverley McLachlin’s Reinvention of the Role of the Chief Justice of Canada

[Editor’s Note: This is the fifth entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here, Part II is available here, Part III is available here and Part IV is available here.]

Lawrence David, LL.M. Candidate, Harvard Law School

Beverley McLachlin’s tenure as Chief Justice of Canada[1] (“CJC”) has been nothing short of remarkable. As the first female Chief Justice in Canada’s history, not only is McLachlin CJC the longest-serving Chief Justice in the history of the institution, with a tenure numbering close to 18 years, but her commitment to enhancing public confidence in the Supreme Court of Canada (SCC) has resulted in a salutary reinvention of the role of the CJC in advancing this most laudable objective.

The traditional life of an SCC judge has typically been conceived of as monastic, being concerned exclusively with the resolution of controversies before the Court.[2] By contrast, the CJC shoulders tremendous additional responsibilities of legal,[3] administrative, and ambassadorial dimensions. Legal responsibilities include, to name a few, administering the oath of office to all puisne justices newly appointed to the Court;[4] serving as Chair of the Canadian Judicial Council,[5] and of the Advisory Board of the Order of Canada,[6] as well as appointing a substitute Chief Electoral Officer in case of her negligence or death or capacity while Parliament is not sitting.[7] The CJC also serves as the Deputy Governor General, acting in her stead in circumstances defined in the Letters Patent of 1947.[8] This Chief Justice McLachlin has done admirably well, notably signing into law the Civil Marriage Act,[9] Canada’s groundbreaking statute enshrining the right to same-sex marriage in Canadian law, less than a year after the Court issued a reference opinion on its constitutionality in the famed Reference re Same-Sex Marriage.[10] Finally, the Supreme Court Act provides that the Court’s process is “tested in the [CJC’s] name”.[11] Administrative duties, which take their root in statute or regulatory rules, include presiding over all of the SCC’s sittings at which the CJC is present; and overseeing the SCC’s work, such as designating panel of judges for cases and motions; and supervising the statutory and regulatory functions performed by the SCC’s Registrar and Deputy Registrar .[12]

As Philip Girard notes in his biography of Canada’s former CJC, the late Bora Laskin, the CJC “plays a considerably more elevated role [than her colleagues] when representing the Court to the outside world.”[13] Thus, while the SCC’s puisne judges have long outgrown the druidic conception of a Supreme Court justice, often appearing at academic and judicial panels and conferences, the CJC is the “first among equals”, an ambassador for the Court and, ultimately, the most immediately recognizable face of the institution.

Neither the Supreme Court Act nor the Supreme Court Rules provide for any formal or informal guidance respecting this ambassadorial aspect of the CJC’s fundamental role. Thus, aside from possible internal SCC precedent governing this aspect of the CJC’s role – whose existence is unbeknownst to the author – and aside from the restraint commanded by the constitutional principle of judicial independence, and analogous rules of natural justice, the CJC enjoys a special discretion to determine the extent, form, and dimensions that her ambassadorial role is to take. This, it would seem, flows both from the essential importance of maintaining public confidence in the SCC’s administration of justice, and from the fact that the Court’s process is “tested in the name of the Chief Justice of Canada.”

In this light, The CJC’s ambassadorial role is one of the many areas upon which Beverley McLachlin has left indelible fingerprints. She has done so on an institutional level, with respect to the Court itself, and on an individual level, with respect to her own public role as the face this important institution. Fundamentally, however, every dimension of CJC McLachlin’s expansion of the CJC’s ambassadorial role is rooted in a simple philosophy, namely, that the Court exists for the benefit of, and belongs to, all Canadians, and that each of the SCC’s judges, starting with the CJC, is a servant of the Canadian public who must promote and enhance public access to and understanding of the SCC to the extent permitted by the aforementioned parameters of judicial and institutional restraint.

McLachlin CJC has helpfully spelled out this philosophical vision in several writings and speeches, most notably in an address entitled “The Role of Judges in Modern Society” which she delivered at The Fourth Worldwide Common Law Judiciary Conference in May 5, 2001.[14] Pronounced a few months after the first anniversary of her elevation as CJC, this address, whether intentionally or not, would prove to be a harbinger of the direction McLachlin CJC intended to take both the role of Chief Justice generally, and that of its ambassadorial aspects, in both individual and institutional dimensions.

In McLachlin CJC’s words, the imperatives of modern society has required significant changes to the role of judges and to the role of courts as public institutions charged with the adjudication of disputes and the protection of constitutional rights and freedoms. Espousing a distinctly “legal realist” approach to the judicial mind and process, McLachlin CJC categorically sets aside the myth of monkish judges isolated from the broader and solely concerned with advancing legal science as a closed and self-sufficient system above and distant from society. Judges and courts are part of society; they adjudicate social problems and take into account broad social policy objectives in arriving at satisfactory legal solutions. This therefore requires judges, and thus the Chief Justice, to be engaged with the society which they serve, not only in theory but in practice. This includes engaging with the journalistic press – an activity previously considered inappropriate by any SCC judge aside from the CJC[15] – a critical conduit for the dissemination of the SCC’s activity and judgments to the broader Canadian public.

With this judicial philosophy in mind, and with unprecedented and rapid technological development, CJC McLachlin has remarkably transformed both the CJC’s ambassadorial role, as well as the SCC itself. Rather than avoiding the press, the CJC has generously, yet carefully, allowed herself to enter the public debate. This has included a now-traditional question and answer with television media following her annual address at the Canadian Bar Association. Another example is the Chief Justice’s annual hosting of an open-door celebration at the Supreme Court on Canada Day, where she routinely appears with her husband, clad in very informal dress. In last year’s event, McLachlin CJC donned a red-and-white ensemble with a Canadian maple leaf motif, and a large circular summer straw hat. At these events, the Chief Justice is cordial with all visitors, posing for pictures with tourists and Canadians alike, from the youngest newborn to the senior citizen who remembers the days when the SCC was no plan for such relaxed fun and games. Chief Justice McLachlin has also managed to combine her love for theatre and the arts with her philosophy of greater accessibility to the SCC and its judges. Every year, for example, the CJC participates in the Stratford Shakespeare Festival, usually alongside one or more of her SCC colleagues, playing one of judges comprising the tribunal hearing Shylock’s appeal in the Bard’s celebrated MacBeth.[16]

At times, her public comments have led to some controversy like, for example, when she publicly characterized Canada’s treatment of its Indigenous populations over centuries, as “cultural genocide”[17]. Again, because of the Internet’s archival properties, this speech, and her appearances at the Stratford Festival are available for all to watch and re-watch. Long are the days when a Chief Justice’s scarce comments captivated the newspapers for a day or two, to be consulted only by historians compiling works accessible only to the highly literate class. Canadians can now literally watch their Chief Justice acting in a Shakespeare play on YouTube[18] from the privacy and comfort of their own homes. Or they may choose to watch one of her speeches in a classroom setting, in the context of a discussion on Canada’s treatment of its Indigenous population.

But the public appearances now entailed by the CJC’s ambassadorial role have not always been at her discretion. Instead, in a most unprecedented event condemned by jurists worldwide,[19] Chief Justice McLachlin was forced to defend herself against baseless allegations by then-Prime Minister of Canada, Stephen J. Harper, of having improperly interfered in the nomination of Marc J. Nadon,[20] a Federal Court of Appeal judge who was later disqualified from appointment on basis of his ineligibility for one of three Supreme Court seats reserved from the province of Quebec.[21] Forced to defend her own, and the Court’s integrity, the CJC issued a tersely worded statement reiterating the longstanding practice of Chief Justices being consulted on by the executive branch of Canadian government with respect to the appointment of Justices to the highest Court of the land.[22] While this example of public participation was foisted upon, rather than chosen by, McLachlin CJC, and while it may have less in common with previous examples rooted in the desire to increase public understanding of the Court, this incident marked an unprecedented expansion of the CJC’s role in public debate that will hopefully never have to be relived by any future CJC or puisne judge of the SCC.

The CJC’s ambassadorial role, as expanded under McLachlin CJ’s tenure, has, as noted above, also led to an expansion of the SCC’s own accessibility and responsivity to Canadians. To be perfectly clear, none of what follows would have been possible without the express blessing and consent of McLachlin CJC. Under her Chief Justiceship, the SCC has gone from an opaque institution whose sole pronouncements came by way of judgment, to one in which the hearing of appeals is broadcast in real-time over the Internet, and later replayed on public interest television channels. Those same channels are often invited to conduct in-depth interviews with each of the Justices of the SCC, focusing not on particular precedents or issues of law, but rather on the human side of each Justice as revealed in their own life stories. The understated goal, unmistakably, is to bridge the gap between the Justices of the SCC and the Canadian public who they serve; the intent is to demonstrate that Justices often come from modest or other circumstances similar to those of litigants whose interests are represented and affected before the court, and indeed, to all Canadians. This goes back to McLachlin CJC’s conception of the role of the judge in modern society, and of her stated belief that fair and compassionate justice requires that judges be and be seen as part of, rather than distinct from the society which they serve.

Another example of institutional change reflecting McLachlin CJC’s philosophy as to the role of SCC justices, and of her expansion of the CJC’s role as institutional steward of the SCC, relates to the Court’s embrace of social media. Taking advantage of social media’s pervasiveness, the SCC now operates accounts on Twitter, LinkedIn and even Facebook. While neither the CJC nor the puisne judges are, to the author’s knowledge, responsible for any of the tweets, the Court’s use of social media to communicate news and updates to Canadians, and to receive their comments on these social platforms, marks the dawn of a new, interactive dialogue with Canadians using methods of communication to which many if not most are accustomed to.

Finally, just this past July, Canadians present in the Nation’s Capital of Ottawa had the unprecedented opportunity to attend a sound and light show held on the Supreme Court’s front law and featuring a battle between two gigantic mechanical creatures – a dragon and a spider – breathing fire and brimstone. The author is personally unaware of any previous spectacle having occurred at the Supreme Court or in its environs, the Court being traditionally regarded as a solemn place where decorum is generally to be observed (with the exception of the aforementioned Canada Day celebration). As a spectator of this impressive show, what struck me the most was not the thousands of families and children also gathered to take part in this unique event. Nor was it the music, the light show, or even the gigantic mechanical creatures simulating a combat for the ages before the Supreme Court of Canada. Rather, what struck me the most was the fact that the show was taking place on the Supreme Court of Canada’s lawn, and that the Court’s administrative independence meant that the show could not have taken place without the express blessing and consent of the Right Honourable Chief Justice Beverley McLachlin. As news of her impending retirement had already been announced, I could not help but feel like this was an early parting gift she had chosen to bestow upon Canadians, and a further reaffirmation of the judicial philosophy she had expressly set out shortly after being elevated to the position of Chief Justice of Canada.

When all is said and done, Chief Justice McLachlin will not only be remembered for her legal acumen, her ability to forge consensus, or for her courage in the face of adversity throughout her tenure as the first female Chief Justice of the Supreme Court and its longest-serving Chief Justice. Instead, she will also be remembered for her salutary expansion of the ambassadorial role of the Chief Justice of Canada, in its individual and institutional dimensions, and its underlying objective of enhancing Canadians’ access to and confidence in the Supreme Court of Canada as the most important institution in the administration of justice in Canada.

Suggested Citation: Lawrence David, I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part V: The Face of an Institution: Beverley McLachlin’s Reinvention of the Role of the Chief Justice of Canada, Int’l J. Const. L. Blog, Dec. 7, 2017, at: http://www.iconnectblog.com/2017/12/david-on-Chief-Justice-McLachlin


The author hereby discloses having previously served as Law Clerk at the Supreme Court of Canada during the 2015-16 term, in the Chambers of Justice Rosalie Silberman Abella. This submission does not contain any information gleaned from the clerkship. The author further discloses being on leave from his position as Legal Counsel with the Government of Canada at the time of writing this article. The views expressed in this submission do not purport to represent those of his employer, whether directly or indirectly, and are entirely his own.

[1] “Chief Justice of Canada” is the official title of Canada’s highest judicial office, see s. 4(1) of the Supreme Court Act, R.S.C., 1985, c. S-26.

[2] Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005) at 411.

[3] “Legal” should here be read as consonant with “legality”, which is not limited to statute, but also includes the Canadian constitution: see e.g., Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, at para. 72, 2012 SCC 45.

[4] Supreme Court Act, s.11

[5] Judges Act, R.S.C., 1985, c. J-1, s. 59

[6] Supreme Court of Canada, “About the Judges”, accessed online, August 28, 2017: http://www.scc-csc.ca/judges-juges/about-apropos-eng.aspx

[7] Canada Elections Act, S.C. 2000, c.9, s. 14(1).

[8] The Letters Patent Constituting the Office of Governor General (1947), Canada Gazette, Part I, vol. 81, p. 3014, reproduced in R.S.C. 1985, App. II, No. 31).

[9] S.C. 2005, c. 33; Megan Grittani-Livingston, “Canada’s Chief Justice lays down the law”, Queens Journal, January 17, 2006, accessed online August 28, 2017: http://www.queensjournal.ca/story/2006-01-17/features/canadas-chief-justice-lays-down-law/

[10] [2004] 3 S.C.R. 698, 2004 SCC 79. In the author’s view, this was not anomalous, as McLachlin CJC was not acting in her capacity as CJC in granting royal assent to the legislature, but was rather performing tasks constitutionally reserved to the Governor General, in her interim capacity as such.

[11] Supreme Court Act, s. 94(1).

[12] See e.g., Supreme Court Act, ss. 15, 16, 17.

[13] Girard, at p. 414.

[14] The Right Honourable Chief Justice Beverley McLachlin, “The Role of Judges in Modern Society”, The Fourth Worldwide Common Law Judiciary Conference, Vancouver, British Columbia, May 5, 2001, accessed online: August 28, 2017: http://www.scc-csc.ca/judges-juges/spe-dis/bm-2001-05-05-eng.aspx

[15] Ibid.

[16] See e.g., Stratford Beacon Herald, “Supreme Court justices find Macbeth, Lady Macbeth guilty of regicide in mock appeal at Stratford Festival”, October 2, 2016, accessed online: http://www.stratfordbeaconherald.com/2016/10/02/supreme-court-justices-find-macbeth-lady-macbeth-guilty-of-regicide-in-mock-appeal-at-stratford-festival

[17] The Globe and Mail, “Chief Justice says Canada attempted ‘cultural genocide’ on aboriginals”, May 28, 2015, online: https://beta.theglobeandmail.com/news/national/chief-justice-says-canada-attempted-cultural-genocide-on-aboriginals/article24688854

[18] See e.g., Stratford Festival Forum, “The Macbeths’ Appeal”, online: https://www.youtube.com/watch?v=7b4hi5bjkEY

[19] Macleans, “International law group raps Harper over Supreme Court feud”, July 25, 2014, online: http://www.macleans.ca/politics/ottawa/international-law-group-raps-harper-over-supreme-court-feud/

[20] The National Post, “Staff Convinced a seething Stephen Harper not to launch a full-on assault on Supreme Court: new book”, August 4, 2015, online:

[21] Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 S.C.R. 433, 2014 SCC 21.

[22] Chambers of the Chief Justice of Canada, News Release, May 2, 2014, online: https://scc-csc.lexum.com/scc-csc/news/en/item/4602/index.do.

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Published on December 8, 2017
Author:          Filed under: Analysis
 

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