On writing judgments
A prolific writer who authors a substantial proportion of the court’s significant judgments, Chief Justice Beverley McLachlin’s fascination with the philosophical underpinnings of cases is unflagging.
At the same time, life on the court is a relentless grind.
“There may be those in the public who think we are just nine people who get to answer questions whatever way we want, but it is not that way at all,” she says.
Adjudicating an appeal invariably involves a vast amount of reading and quiet reflection about each party’s position and interests.
“The hardest part of judging is probably fully appreciating the dimensions of the problem that you have to solve. Often, part of that process is writing draft after draft that end up in the shredder. You just start all over again. Nobody sees it. Nobody is aware of it.”
On public reactions to court decisions
The judge chosen to draft reasons for the majority feels a heavy sense of responsibility, Chief Justice McLachlin says.
At the same time, the project becomes intensely personal. “You become so friendly with them [decisions] that, by the time you send one out, you think of it as being ‘just my little case.’ Suddenly, your little case is on the editorial pages, causing some people to say the world is ending and others to say that no, we are heading in the right direction.
“You sit back and go: ‘Ohhhhh.’ ”
On mentally ill offenders
Offenders found not criminally responsible go to psychiatric facilities for treatment. At least once a year, their status is reviewed by expert panels. After treatment, most of them return to society and resume normal lives. But under a federal proposal, it will become more difficult for those designated as high-risk offenders to be released.
Chief Justice McLachlin points proudly to a 1990 Supreme Court of Canada decision, R v. Swain, as the key move that created a new template for giving mentally ill offenders regular reviews.
“It said you can’t just lock up a person who has been found not guilty by way of their illness, and throw away the key,” she says. “That was the breakthrough.”
Endorsing the review-board system, she says: “The interesting thing is that the hearing process is staffed heavily by psychiatrists and I think it is well-supported by the medical side of things, by the police and by judges.”
At the ‘intake’ end of the system, however, Chief Justice McLachlin says offenders are too often warehoused by police or sent back to the streets without having received proper treatment.
“You get this never-ending circle,” she says. “It is very expensive and very time-consuming. It is not helping people at all and it’s not helping society because they are just back out on the street again doing the same things they were doing – shoplifting, or whatever brought them in in the first place.”