David Butt is a Toronto-based criminal lawyer who has argued multiple cases before the Supreme Court..
The Supreme Court of Canada homepage opens with, "Canadians are privileged to live in a peaceful country." With Chief Justice Beverley McLachlin retiring in December, that homepage opener is too modest. It should read, "Canadians are privileged to live in a country with an outstanding chief justice." History will cast an approving gaze on the McLachlin court, for four reasons.
First, Chief Justice McLachlin guided the Supreme Court with a steady hand through long periods of both Liberal and Conservative government. Sound judicial equilibrium during political ebb and flow is an under-appreciated imperative whose value to the country is enormous.
People initially come to court because they are in a fighting mood, and cannot make peace among themselves. People make it all the way to the Supreme Court because their fights also raise far-reaching questions of national importance, often ideologically or politically charged. Thus the peace-making role of the Supreme Court is not limited to deciding for or against one of the litigants before it. The court's decisions must also build consensus on large social or legal issues for the entire country.
The Supreme Court's work is nothing short of nation-building through the law. Its work must not be buffeted by changing political winds. It must always chart a course based on enduring values that will continue to unite us as governments come and go. In accomplishing this difficult but essential task, Chief Justice McLachlin's guidance has been deft and perceptive. Throughout her tenure, judges have been appointed by both Liberal and Conservative governments, to decide many controversial cases. Despite the potential for divisiveness, we witnessed virtually no ideological posturing that devalues the work of the United States Supreme Court. Instead, the McLachlin court has been prudent, and although sometimes underwhelming, always carefully reasoned and reasonable. The McLachlin court built out solid legal foundations for social cohesion. In its understated but strong approach to the law, the McLachlin court was prototypically Canadian and Canada is stronger for her court's work.
Second, the McLachlin court laid crucial groundwork for the core Charter of Rights and Freedoms challenge for the 21st century: reconciling competing rights. Shortly after our Charter arrived in 1982, the Supreme Court led by then-chief justice Brian Dickson had to give the new document meaning and substance. Chief justice Dickson, another Canadian legal giant, rose to the task. His court made our Charter both vigorous and flexible.
But by giving such commendably expansive content to Charter rights and freedoms, the Dickson Court created an imposing second-generation challenge: What to do when two or more of those wide-reaching rights or freedoms clash? It fell largely to the McLachlin court to start wrestling with that challenge, and the McLachlin court responded admirably. Her court rejected the simplicity of an either/or approach to conflicting rights, and instead embraced a much richer, more nuanced perspective that interprets competing rights with great sensitivity to how they actually impact the real lives of the people affected and, most importantly, gives each competing right as much scope as possible. The McLachlin message on competing rights is one of maximum generosity and maximum accommodation. Her Court has left our approach to rights and freedoms imbued with compassion, common sense, inclusivity, balance and breadth. Those are praiseworthy guiding principles with enormous promise.
Third, as our first female chief justice, she shattered the glass ceiling so forcefully yet so elegantly that not a shard remains protruding to deter any woman from aspiring to rise as high. With seeming effortlessness that was really a winning combination of grace and acuity, she made gender in high office a non-issue in the best possible sense. This is no small accomplishment in the legal profession, whose thought patterns and practitioners often remain far too deeply traditionalist and stubbornly retrograde.
Fourth, Chief Justice McLachlin brought a symbolically instructive personal style to her role as the country's top jurist. The pressure of appearing in the imposing, cold, art-deco surroundings of our Supreme Court is enough to make any lawyer's knees weak. But from the middle of the long dais where all nine judges sit seemingly ready to pounce, Chief Justice McLachlin would set the tone for each case with an earnest, warm, pragmatic demeanour, making those appearing before her feel like they were figuring out an interesting everyday problem. Her courtroom style should be emulated everywhere, because embedded in it is a valuable lesson that transcends style: Working with the law is not about fighting to win, it is about collegial engagement in pursuit of constructive resolution.
The McLachlin legacy is multidimensional and well-built. It will serve us ably long after its architect steps down.