Former Chief Justice of Canada Beverley McLachlin was the keynote speaker at the Risk Management Conference. This is a condensed version of her presentation.
You once said that the court belongs to Canadians and should reflect the Canadian people. How did you strive for that in your work? How did you manage conflicting views and get to consensus?
I believe that the courts of course belong to the Canadian people. We’re a service institution and so we have to pay our own way and justify our own way and in that sense be there for people. But when I made that comment I was also thinking about diversity and composition on the court.
I remember being in a courtroom – it was the division of property between a husband and a wife – and the wife had a female lawyer, the court reporter was female, the court clerk was female and I was female of course, and the husband was there all by himself. After we got through the wife’s story, I asked him to stand up and he didn’t want to stand up, or couldn’t, and I thought well it’s because he doesn’t have a lawyer. I said, “This is a simple case, the fact that you don’t have a lawyer shouldn’t bother you, I just need to hear your side of the story.” Finally, he stood up and he said, “It’s not that I don’t have a lawyer,” he looked around this courtroom full of women, “frankly I feel outnumbered.” I thought that evening as I reflected on the day how many women, if they ever got to court at all, felt a little outnumbered. That’s when the diversity thing came home to me. It’s not just women. It’s minorities of all sorts.
Now the second question. It was my idea that the court should speak with one voice in so far as that was possible. We inherited this system from England where every judge would go back to the library or home and write their piece and so you would have a court of appeal with five members on it, shall we say, and you’d get five different judgments seriatim and then the lawyers would have to put together the bits and pieces and say they all agree on this point but they don’t agree on that point and we’re not too sure on the third point. People were complaining about that; lawyers were complaining about that and I thought, they have a point because our job, under our statutes, is to give guidance on the difficult legal issues and we’re not giving a great deal of guidance if we have these scattered opinions. We should try to give as clear as judgment as we can and tell people in a straightforward manner what we’ve decided, what we’ve left for another day, where we differ.
You’ve been called an activist by some. Do you think that’s a fair label?
I always just tried to call things as I saw them. Sometimes that meant actually taking a position that some people at the time felt was retrograde and criticized because it was too conservative or didn’t follow a certain line on women’s rights or aboriginal rights that politically I might have thought should prevail. But if the record is not there, if the facts aren’t there and the law as applied to the facts don’t lead to certain conclusions, I always thought as a judge I must reject them and let the chips fall where they may. I think that term activist — you have to deconstruct it. What does it mean? It just means you don’t like it, usually. My job as a judge is neither to be activist nor deactivist. It’s just to call the cases as I see them.
What do you think is your legacy?
I think the decision of the court on the Quebec separation reference had a lasting role on the country. The immediate result of that decision was that it calmed the waters somewhat and it was a very Canadian decision in the sense that we’re not going to get into a civil war about this, we’re not going to fight about this, but there will be rules and an equitable way of proceeding should this ever happen. Quebec claimed victory because leaving wasn’t impossible if they got their clear majority on a clear question and the federal people were happy. I’m very proud of what the court did on that.
The other piece of work, and there are a lot of other decisions, is the work the court has done on Indigenous rights files has been really, really profoundly changing for the nation, its future — and the whole idea of reconciliation, which has been developed in those decisions, will resonate for many years to come and I think show a path forward that I hope will ultimately be successful.