[Editor’s Note: This is the first 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.]
—Eric Adams, University of Alberta, Faculty of Law
Reflecting on the legacy of Chief Justice Beverley McLachlin’s remarkable tenure at the Supreme Court of Canada presents a daunting task. Always laudably difficult to pigeon-hole politically, her immense and (on any accounting) impressive corpus of judgments covering nearly three decades at the Court is as complex and multi-faceted as the pluralistic country it seeks to govern.
Despite that diversity, there are discernible threads that bind her jurisprudence together, certainly in the field of constitutional law. In the main, McLachlin, CJ approached the Canadian Charter of Rights and Freedoms as an instrument of Canadian legal liberalism: a calibrated, contextual, and careful blend of concern for individual rights and freedoms explicitly balanced against the proportionate limitations of state interests. Just prior to her appointment to the Supreme Court in 1989, McLachlin, J candidly acknowledged that such balancing “is essentially a judgment of a political rather than judicial nature. The answer cannot be determined by logic or by stare decisis …. the answer resides ultimately in the values of the court deciding the case.”[1]
The values McLachlin, CJ consistently brought to her Charter jurisprudence included full confidence in the legality, capacity, and duty of the Court to strike down legislation that infringed the Charter, especially in areas where the state interfered with individual liberties within a classical conception of personal autonomy.[2] Whatever the context, the individual remained at the normative centre of McLachlin, CJ’s conception of constitutional rights.[3] She guided a Court readily prepared to strike down legislation and discretionary executive decision-making without compunction.[4] Such actions led to the frequent charge of judicial activism from conservative quarters, politically and scholarly alike. The Chief Justice paired such acts of boldness in individual rights protection with a propensity for conservatism in interpreting the Charter’s reach. Chief Justice McLachlin disappointed critics on the other end of the spectrum for failing to extend the Charter to encompass positive social and economic rights, or to combat less tangible forms of systemic discrimination.[5]
Chief Justice McLachlin’s decisions are also linked by a commonality of style intimately interwoven with her substantive theories of Charter adjudication. That style – direct, plain spoken, and logical – emerged the product of an incisive analytic mind and a no-nonsense prairie temperament. Consistently foregrounding their reasons, her decisions generally leaving flourishes of the pen and personality to the side. The emphasis on plain reasoning promoted McLachlin CJ’s efforts to make the Court and its decisions more accessible to a broader public, but also to protect the legitimacy of the institution from critics eager to find evidence of hubris lurking in judicial exercises of power.
Chief Justice McLachlin will also be known for the trailblazing of that first generation of women judges. The judiciary, certainly in demographics and decidedly in culture, remained a white male bastion when McLachlin was first appointed to the Vancouver County Court in 1981. It remained a largely male world when she was the first woman appointed to the British Columbia Court of Appeal. It was still so when Justice McLachlin joined the Supreme Court of Canada in 1989, a time when it would remain controversial to ask, as Justice Bertha Wilson famously did a year later, “Will Woman Judges Really Make a Difference?”[6]
There was, perhaps, more than the usual empathy then, when McLachlin, J wrote her reasons in the case now known as Meiorin.[7] Tawney Meiorin worked in a male-dominated profession too, fighting dangerous fires in the dense forests of the British Columbia interior. Her employer fired her for failing to complete a 2.5 km run in the allotted time and Meiorin grieved the termination as discriminatory.[8] Brushing away the complicated jurisprudential architecture that had been built up around the supposed difference between direct and indirect discrimination, McLachlin, J outlined a unified test – cited on hundreds of occasion since – for ascertaining the presence of workplace discrimination and its bona fide justification. Employers designing workplace standards,” she explained “owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards.”[9]
Building conceptions of equality into our workplaces, like the law itself, remains an allusive goal, a work-in-progress. In these respects, McLachlin, CJ leaves a jurisprudence of identified goals, and unrealized potential. But that too is the nature of a dynamic constitutionalism always in the process of becoming; a jurisprudence of travel, not destination. For nearly thirty years, McLachlin, CJ helped to direct that journey. Like all guides, her decisions will have appealed to some more than others. Among her most significant legacies will be continuing debate on the accuracy of the maps she used to perform her task. McLachlin, CJ has stood tall over Canadian law for a generation; her presence as a singular figure in Canadian legal history will endure a good deal longer than that.
Suggested Citation: Eric Adams, I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part I: Reflecting a Chief Justice, Int’l J. Const. L. Blog, Dec. 4, 2017, at: http://www.iconnectblog.com/2017/12/i-connect-symposium-the-legacy-of-chief-justice-beverley-mclachlin-reflecting-a-chief-justice
[1] The Honourable Madam Justice Beverly McLachlin, “The Charter of Rights and Freedoms: A Judicial Perspective” (1988-1989) UBCLR 579 at 583.
[2] R v Keegstra, [1990] 3 SCR 697; RJR-MacDonald v Canada, [1995] 3 SCR 199; Rodriguez v British Columbia, [1993] 3 SCR 519; Bedford v Canada, 2013 SCC 72.
[3] Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37,
[4] Carter v Canada, 2015 SCC 5; Canada v PHS Community Services Society, 2011 SCC 44;
[5] Gosselin v Québec, 2002 SCC 84.
[6] Madame Justice Bertha Wilson, “Will Woman Judges Really Make a Difference?” (1990) 28:3 OHLJ 507. The speech gave rise to a complaint of judicial bias before the Canadian Judicial Council. “Mulroney appoints 3rd woman to court” was how the Globe and Mail headlined Justice McLachlin’s appointment in 1989: Kirk Makin, “Mulroney appoints 3rd woman to court” Globe and Mail (31 March 1989) A1.
[7] British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 SCR 3.
[8] Meiorin failed the test by 49.4 seconds. See Eric M. Adams, “Human Rights at Work: Physical Standards for Employment and Human Rights Law” (2016) 41(6) Applied Physiology, Nutrition, and Metabolism 63.
[9] Meiorin, supra note 8 at para 68.
Comments
2 responses to “I-CONnect Symposium on “The Legacy of Chief Justice Beverley McLachlin”–Part I: Reflecting a Chief Justice”
Great piece.
It is, however, unfair to blame McLachlin CJC for refusing to embrace invitations to transform the Charter into an instrument for the vindication of economic and social rights, none of which have any textual or purposive anchor in the Charter, and both of which cannot be reconciled with the separation of powers. There is an aspect of institutional legitimacy; do we really want unelected judges to order the disbursement of public funds. All of these concepts must be taken seriously regardless of one’s legal philosophy. You mention the case of Gosselin 2002. As noted in that case, the claim was actually a class action seeking billions of dollars, and whose vindication would have brought Quebec to the brink of bankruptcy. Desirability in law does not mean illegitimacy or wrongness in refusing to give it effect. CJC McLachlin should be commended for continuously demonstrating the progressive potential and impact of judicial decisions within inevitable and democratically essential and legitimate institutional constraints.
One more thing: McLachlin CJC cannot be held solely responsible for declining to turn the Charter into an instrument for social welfare rights. There are 8 other justices on the court at any given time. None of them have sought to accept the invitation, with the exception of Arbour J.’s dissent in Gosselin in 2002, 15 years ago. If McLachlin CJC were truly to blame, one would think other Justices would have chimed in and sought to effect such change. This has not occurred, despite several changes in judicial composition since McLachlin was appointed CJC in 2000. Nothing in my two posts is contradicted by the Court’s willingness to provide state-funded counsel for individual claimants under s. 7 (ex: Winnipeg v G(J)) or Charter damages under 24(1). There is a vast gulf between billion dollar Charter class actions like Gosselin and Charter damages as in Ward, which, apply exclusively against the State…..