From her early days on the Supreme Court of Canada, when she stood up for the rights of those accused of sexual assault, through her opposition to mandatory minimum sentences and the criminalization of those who participate in assisted dying, Chief Justice Beverley McLachlin has defended constitutional rights, often in support of causes that were not popular.
On Saturday, as she nears retirement, the Criminal Lawyers' Association is giving the court's longest-serving chief justice a lifetime achievement award, the G. Arthur Martin Criminal Justice Medal, saying she has been "one of the Charter's most influential exponents and interpreters."
Prime minister Brian Mulroney named the Alberta-born, former B.C. judge to the court in 1989, and prime minister Jean Chrétien appointed her chief justice in 2000. She has announced she will step aside on Dec. 15, nine months before she reaches the mandatory retirement age of 75.
"The Chief Justice has defined the boundaries of what the state can legitimately criminalize and what it cannot," says a nomination letter from six of her former law clerks and five former executive legal officers (who deal with the media and are attached to the chief justice's office). For instance, the court she led lifted the ban on medical assistance in dying in 2015 and struck down federal prostitution laws in 2013, in a ruling she authored for a unanimous court, the letter said.
Separately, last year's winner, Toronto lawyer Frank Addario, nominated her and cited her defence of judicial independence, particularly when she came under public pressure from prime minister Stephen Harper in 2014 over alleged interference in the appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court. (The court ultimately rejected Justice Nadon as legally unqualified.)
"Chief Justice McLachlin stood up to a rare political challenge to judicial independence," Mr. Addario said in his letter. "Had the attack stuck, it would have changed the reputation of the judiciary permanently." But because of her dignified and restrained response, it did not, he said.
"For criminal lawyers, judicial independence is the key to protecting the legal rights in sections 7 through 14 of the Charter," Mr. Addario said. These include the right to life, liberty and personal security; the right to protection against unlawful search and seizure; the right to be tried within a reasonable time; and the right to protection against cruel and unusual punishment.
The award is named for a former criminal defence lawyer who later served on the Ontario Court of Appeal. Chief Justice McLachlin's predecessor, Antonio Lamer, also won the award, as did Supreme Court judges Louise Arbour, Peer Cory and Morris Fish. Other winners include Mark Sandler, Richard Peck, Charles Dubin and Edward Greenspan.
The Criminal Lawyers' Association has 1,350 members in Canada.
Former executive legal officer Jill Copeland, now a judge on the Ontario Court of Justice, was a driving force behind Chief Justice McLachlin's nomination letter.
"The most important thing I learned from the Chief Justice about judging is that it is a human exercise," Justice Copeland said in an e-mail to The Globe and Mail. "Every decision a judge makes affects the people before the court. In a criminal case, this means not just the defendant but the complainant, witnesses, and the community."
She said three decisions, or groups of decisions, exemplified Chief Justice McLachlin's approach to criminal law.
The first was the 1990 case R v. Hebert, not long after she joined the Supreme Court, on the right to remain silent. On the advice of his lawyer, an accused man told police he would not speak to them. He was then placed in a holding cell, where undercover officers tricked him into talking. Justice McLachlin, writing for a unanimous court, said that tactic violated the right to remain silent. Her reasons for judgment exemplified "the balance in her work as a judge, considering the rights of the accused, the vulnerability of an individual being held in police custody, and the public interest in investigation of criminal offences," Justice Copeland said.
The second was the prostitution case known as R v. Bedford in 2013, in which Chief Justice McLachlin wrote a unanimous court decision striking down three major laws affecting sex-trade workers, on the grounds that the laws added to the dangers these workers faced. Justice Copeland said the ruling showed Chief Justice McLachlin's attention to "the real-world, practical effects of the law."
The third was a group of decisions that Justice Copeland said showed Chief Justice McLachlin's "collegial and inclusive style of leadership," bringing the court together on contentious issues on which it had previously been divided. She offered three examples: USA v. Burns from 2001, which barred the extradition of individuals to face the death penalty; the Bedford decision striking down prostitution laws; and the Carter decision of 2015 legalizing medical assistance in dying.