Photograph by Blair Gable
It’s 10 years and counting since Beverley McLachlin was sworn in as chief justice of Canada, the first female in the role. Born in the town of Pincher Creek, Alta., and first appointed to Canada’s Supreme Court over 20 years ago, today she is the most powerful woman in the country. An outspoken advocate of making the courts more accessible to Canadians, McLachlin spoke to Maclean’s last week in Ottawa.
Q: A hallmark of your court has been its openness—you’ve started webcasting appeals proceedings, you give many speeches. What’s your aim with all this?
A: The courts belong to the people. As such, I think people are entitled to know what goes on in the court. This is a very ancient principle of justice, that the courts always be open. As you’ve noted, we have webcasts now. People tune in, and they say, “who are those strange people sitting in their robes?” and they learn a little about the court, and the civilized dialogue that goes on there.
Q: Do you ever worry about the aura of the court being eroded?
A: I agree that the court should be somewhat removed. But I also think the people of Canada are entitled to know who’s on their courts, and how they work. And there’s greater danger in mystery, seeing the court as this oracle up there that all of a sudden, out of the blue, pronounces.
Q: Does that have implications for the way judges are appointed to your court? Should it be a more open process?
A: That is a question only the Prime Minister could answer, because the Constitution gives the Prime Minister the total right to appoint justices to this court. We’ve had some variation on that recently, but it’s difficult to see a model from my perspective.
Q: You mean a model that gives a clearly defined role to MPs on a House committee?
A: Justices [Rosalie] Abella and [Louise] Charron were appointed in circumstances where the minister of justice consulted with the committee, and then chose, presumably with the Prime Minister, and then went before an ad hoc parliamentary committee and answered questions about the choices. The judges didn’t appear. Then the next appointment was Justice [Marshall] Rothstein, and at that point they arranged for an ad hoc parliamentary committee and asked Justice Rothstein himself to appear before it. For the latest appointment, Justice [Thomas] Cromwell, there was no appearance before any committee by a justice minister, or by the candidate.
Q: We understand that you can’t tell the Prime Minister how to do it, but can you say if you think the rules for the appointment process should be firmed up?
A: It would depend on what the process was. I do believe there has to be a process, and the traditional process of Canada has been one of thorough, in-depth study, review by the Justice Department on a very objective basis, I’m led to believe, which is then sent on with recommendations of perhaps several top candidates to the political branch and the Prime Minister. I would hope we would never go to a process where we don’t have in-depth scrutiny of candidates by an objective body such as the Justice Department. Exactly what happens thereafter will depend on what the Prime Minister wants to do.
Q: Some of the debate around judicial activism seems to have died down in the last few years. Do you think there’s a better understanding of the balance between laws politicians pass and how judges interpret them?
A: I think so. Goodness knows I’ve given enough speeches on that. I felt it was important to explain what we do as judges, and the limits on what we do, and how we are interpreting the law. We approach arguments that Parliament’s gone too far, for example, with a great deal of deference, because we feel that legislators and parliamentarians have tools that the courts don’t have. More fundamentally, that’s their job. Provided they operate within the large parameters of the Constitution, we do our best to uphold that legislation.
Q: Does it change that balance when new laws tell judges how to rule? We’re thinking of the spate of new federal crime statutes that dictate mandatory minimum penalties.
A: These are matters that may come before us, mandatory minimums and some of the recent laws, so obviously I’m not going to pronounce in advance. But as a general observation, the more precise the law is—provided it’s within the bounds of the Constitution—the less discretion there is for judges. Beyond that, I’m not sure how much I can say.
Q: But it’s sometimes suggested that the courts have been coddling criminals. Do you think there’s any justification to that criticism?
A: I don’t think so, overall. You have to realize that judges under the Criminal Code have to take into account not only retribution. In fact, they have to look at rehabilitation. They’re directed to. They have to look at a number of factors in sentencing. And sometimes the perspective from the person who’s making the speech about how judges are too soft is simply one of, this conduct deserved more retribution. It’s easy to understand that someone who’s looking at the penal process only through the lens of retribution may come up with a view that’s different than a judge, who is required by the Criminal Code to look at three other factors that may sometimes cut the other way.
Q: So light sentences shouldn’t be a concern?
A: I’m confident, by and large, that the judges of Canada are applying the sentencing provisions of the Criminal Code in a responsible manner. The courts of appeal throughout this country hear many sentence appeals where the Crown and the accused argue about what’s the appropriate sentence. This is a process that’s carried on within the parameters of what the Criminal Code requires, and I’m confident it’s working properly.
Q: You’ve taken a personal interest in the problem of access to justice, especially cases where Canadians can’t afford lawyers. What’s your read of progress on that challenge?
A: In terms of awareness, things are much better today than they were 10 years ago. We’ve got efforts at various levels across the country to improve access to justice. Ontario has a very strong pro bono movement amongst law firms, same in many other provinces. It’s a complex and difficult problem. There are so many facets: for example, right now, in some provinces, there are not enough provincial court judges. The reality is that a significant number of litigants on the civil side today are not getting a lawyer. So, governments have set up self-help centres where they can inform themselves.
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