[Editor’s Note: This is the second 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.]
—Jamie Cameron, Osgoode Hall Law School
The festschrifts for retiring Chief Justice Beverley McLachlin that are now underway will continue apace in the months ahead. Though far from easy, commenting on a moment or two from a legacy that is unimaginably rich can be done. Judicial personality is the frame for this comment. Over the years, the Chief Justice has been presented as a pragmatic jurist who is committed to evidence-based decision making. Yet as only a short discussion reveals, a more complex dynamic is at work.
Beverley McLachlin has not hesitated to stand up and stand apart, and is especially known for a cluster of key dissents and strong positions in her earliest years at the Supreme Court of Canada. Well worth noting in this cluster are solo dissents in two companion cases from 1991, which are rarely mentioned but should not be forgotten. These cases marked the first time the Court considered search warrants against the press under the Charter of Rights and Freedoms. Then Justice McLachlin was the only member of the panel to conclude that police warrants against the Canadian Broadcasting Corporation (CBC) were not simply a matter of reasonableness under s.8 of the Charter. She found a violation of s.2(b)’s guarantee of expressive and press freedom that required rigorous justification under s.1’s standard of reasonable limits. After theorizing freedom of the press and explaining the threat to an independent press, her dissents quashed the warrants.
The CBC dissents also flagged an early instance of doctrinal leadership. In quashing the warrants, Justice McLachlin proposed a two-part test that might have inspired the highly influential Dagenais test for discretionary decision-making. Regrettably, as Chief Justice she abandoned the instincts that compelled those dissents when journalist-source privilege was before the Court in 2010. Even so, the pair looms large against disturbing revelations, in fall 2016, that over a period of years Quebec police forces easily obtained warrants and wiretaps to snoop on some of Quebec’s most prominent broadcast and print journalists. One wonders what difference it might have made if her view had prevailed in 1991.
Chief Justice McLachlin knows the power of dissent but also understands the dynamics of vulnerability – before and in the face of the law. That is why Winko v. BC (Forensic Psychiatric Institute) may be one of her finest decisions of all. Decided in 1999, Winko set the foundation for the relatively new system of forensic criminal justice under Part XX.1 of the Criminal Code. Then-Justice McLachlin’s majority opinion is much admired for sagely balancing the competing imperatives of protecting public safety and promoting the liberty interests of forensic offenders.
There is more: Winko is nothing short of groundbreaking for its mindfulness of and response to the sheer vulnerability of mentally disordered criminal offenders. Throughout, Justice McLachlin insisted that this class of offenders be treated with respect and dignity, emphasized that the unremitting focus of forensic criminal justice is treatment, not punishment, and made it clear that restrictions on the liberty of forensic offenders must be the least onerous and least restrictive available in the circumstances.
A little-known but key incident at the outset of her Supreme Court tenure telegraphed the place empathy holds in Justice McLachlin’s judicial personality. In August 1989, only a few months after she was appointed, the Court heard an extraordinary summer appeal on an expedited basis. The matter concerned Ms. Daigle, whose abusive ex-partner obtained an injunction to prevent her terminating a pregnancy. During the lunch break at the hearing on August 8th, when the judges learned that the abortion had already taken place, Chief Justice Dickson reportedly erupted, pronouncing that the hearing should be stopped. In the moment, citing Daigle for contempt was apparently not out of the question. That is when Justice McLachlin stood up for Ms. Daigle, inviting the Chief Justice and others to put themselves in her position, and imagine what being forced to carry the fetus to term in the circumstances of that relationship might be like. To their credit, the other judges listened and the Court quashed the injunction at the end of the hearing.
Rather than name it as empathy, the Chief Justice has described this approach as “conscious objectivity”. She has said that it calls for “an act of the imagination,” when “you put yourself in the shoes of the different parties, and think about how it looks from their perspective, and really think about it, not just give it lip service” (emphasis added). Examples which abound, apart from Winko, include her much-celebrated dissent in Rodriguez v. British Columbia; her more controversial decision on access to health care insurance in Chaoulli v. Quebec; and her pioneering majority opinions – which were unanimous – on safe injection sites for drug addicts and the invalidity of criminal law provisions on prostitution-related activities. There can also be no doubt the Chief Justice played a pivotal role in Carter v. Canada, the Court’s assisted suicide decision, which was decided by an anonymous opinion of “the Court”.
Beverley McLachlin has remarked that she would like to be remembered as a “good jurist, as a serious jurist”, as a “competent jurist who did her best to decide cases … as well as she could and conscientiously”. With respect, there is much more to it than that, as her consummate skill as a jurist may be unmatched. Among other things, it consists in weaving empathetic considerations into a pattern of decision-making applauded for its intellectual rigour and overarching commitment to the rule of law. Justice McLachlin’s mastery in managing this interplay with insight and poise is the beating heart of her judicial personality.
Chief Justice McLachlin has earned deep respect in Canada and worldwide for her unflagging devotion to the rule of law and her unblemished service to the Court and country she loves. No matter how numerous they may be, it will be difficult for the festschrifts to show her the honour she deserves. In that, the essence of her judicial personality – who Beverley McLachlin is and how her values have infused an unparalleled jurisprudence – is surely one of the most intriguing and yet unexplored parts of her legacy.
Suggested Citation: Jamie Cameron I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part II: Dissent and Empathy: Hallmarks of a Complex Judicial Personality, Int’l J. Const. L. Blog, Dec. 5, 2017, at: http://www.iconnectblog.com/2017/12/cameron-on-the-chief-justice
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