Celebrations and Milestones
March 17, 2017 – Chief Justice Beverley McLachlin received the first-ever Simone de Beauvoir Institute Prize and delivered a lecture on the importance of the courts in Canadian democracy as part of the Social Science Research workshop series at Concordia University in Montreal, Quebec . In receiving her Prize she made a speech about Canada’s 150th anniversary of Confederation where she answered a series of questions about Canada’s constitutional defining moments. The last question she was asked; what is the best present that we could give Canadian Democracy on the occasion of its 150th birthday? I would think the answer would naturally be changing our antiquated electoral system from first-past-the-post to some form of Proportional Representation. Her answer was close enough:
“I thought about it for quite some time” she says, “and then I thought of this; if I had one wish to make and one gift to give it would be for fuller representation of all groups of Canadian society in our democratic institutions; in our legislatures, in our parliaments, our Courts, in our local governments, in our school boards, on our hospitals boards and the list goes on. We need more women, more indigenous peoples, and more minority races in every facet of government and democratic governance thus we can fully have Canadian democracy, and represent the Canadian people. So that would be my present to Canada on its 150th Anniversary.”
Her comments were made when an e-petition was circulating on the Government of Canada‘s e-petition website requesting that our Prime Minister would reconsider his decision and keep his promise to change our electoral system. The e-petition was widely circulated gaining the highest signature count in the history of e-petitions and at times the traffic was so high that it over-burdened the government’s servers. Sadly, as high as the signature intake was it still didn’t convince our Prime Minister that we had consensus to change our electoral system. Even more disappointing, we missed an opportunity to receive blessings from members of the Royal family on their visit to Canada for the 150th Canada Day birthday celebrations. On April 17, 1982, with Justice Minister Jean Chretien looking on, Pierre Trudeau and Queen Elizabeth signed our Charter of Rights and Freedoms, what a truly momentous event it would have been to have had their sons, the next generation, carrying on a tradition following in their footsteps to have done the same some 35 years later, this time to change a system we have been using since 1867.
In fact, in her speech one of McLachlin’s constitutional defining moment was the signing of the Charter; she said:
“My third constitutional defining moment is the repatriation of the constitution and the adoption of the Charter on April 17, 1982. This moment signaled true independence for our country reaffirmed the principles of democracy federalism and respect for minorities that was inherent in the BNA Act of 1867 and constitutionalized individual and group rights for all Canadians the Constitution Act of 1982 changed Canada from a parliamentary democracy on the British model to a constitutional democracy henceforth all laws and government action would have to conform to the Charter. While the Charter had its detractors initially, particularly in the early years, 35 years later I think most people would say that repatriation of the constitution was vital to our country’s democratic growth and that the Charter has stood the democratic test of time. It has become part of the Canadian identity. Polls tell us that Canadians take pride in the Charter and see it as a fundamentally defining element of Canadian democracy.”
Pillars of Democracy: Justice
Are we aware of what this fundamental document says and its meaning for every Canadian citizen? Do we really take pride in our Charter? To determine the answers, we will continue to follow CPAC’s 25th-anniversary celebration with its four-part documentary series, “The Pillars of Democracy: Justice, Freedom, Equality, and Representation” which highlights four democratic events that have shaped our social and political landscape. In this article, we will cover the topic of “Justice” by recognizing and celebrating the 25-year long career of Chief Supreme Court Justice Beverly McLachlin for which earlier this year she had announced her retirement 9 months prior to the mandatory date for judges. It is important to recognize the contributions McLachlin has made to our Courts and justice system, since she is the first female and longest-serving justice thus far in Canadian history. We will also examine two other subjects that currently have Canadian citizens suspect of our judicial system and that perception weakens our state of democracy; affordable access to justice and biased judges especially under the scope of sexual-assault cases.
Simone de Beauvoir Institute Prize
The Simone de Beauvoir Institute Prize recognizes women who are building a world dedicated to gender equality and social justice. “It is fitting that McLachlin be the inaugural recipient,” says Concordia’s president Alan Shepard. “As the first female chief justice, she has been a trailblazer for women and a role model for all Canadians.”
Of Simon de Beauvoir, her favorite philosopher, Ms. Lachlin said “Nobody then knew what a feminist was at the time. But here she was and I was asked to read her writings and I found great wisdom in a number of her writings on what is a woman, how you became a woman, how you take responsibility as a woman for your actions, how you find value in yourself and how you find value in others. You may not realize or you may not think you have abilities at the time of reading her; I didn’t think I had but you’ve got to move forward and test yourself or you will never know. And when you do take on challenges whatever they may be you probably will find strengths you never thought you had something that really helped me take on some challenges that I would otherwise not have.”
Vivian Namaste, a professor at the Simone de Beauvoir Institute, was instrumental in creating the award. “Equality is often considered in relation to the law. McLachlin symbolizes the gains that women have made and can make,” Namaste says. “Under her leadership, the Supreme Court has rendered decisions on very complex dossiers and as chief justice, she has approached these issues with rigor and grace.” As the longest-serving chief justice in Canada’s history, McLachlin has ruled on cases that reshaped key societal issues, including Indigenous rights, sex work, and assisted suicide.
As lofty as its goals are, our justice system is far from perfect. Yes, it has improved over its evolution since 1867, yet we do have some ways to go to satisfy the intent of its existence as outlined in our Charter.
Access to Justice
The Charter reflects Canadians’ conception of themselves as “rights holders”. But when it comes to justice and accessing justice for all, the reality falls very short from the intent of this fundamental document. Access to justice is a theme McLachlin has been actively advocating sounding the alarm for over a decade in legal circles on what’s become the elephant in the room. In a speech to the 2007 annual meeting of the Canadian Bar Association, she called it “a basic right,” comparing it to education and healthcare. Conrad Black echoed the same sentiment at the MacDonald Laurier Institute’s Great Canadian Debate: Activism on Canada’s Supreme Court against Irwin Cotler advocating that we need legi-care which would operate similarly to Medicare as a potential remedy to our growing problem. McLachlin described the access situation as increasingly urgent, with the middle class, in particular, finding it hard to resolve legal problems because of the cost. But as professor Adam Dodek of the University of Ottawa’s faculty of law recently wrote, “the courts—especially our high court—are part of the problem.”
Her speech capped a day in which judges, lawyers and academics from Canada, Britain and the United States bemoaned the fact that middle-class people in the court system suffer from a combination of rising legal fees, increasingly complex procedures and the unavailability of legal aid to all but the poorest litigants. The measures they debated to bring justice back to the middle class ranged from creating a universal legal insurance plan to legal hot-lines and panels of legal experts capable of providing advice online.
“Do we have adequate access to justice?” she asked a University of Toronto conference on the problem. “It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class [marginalized] and the poor may not be able to access our justice system.” And they are the ones who need it the most. McLachlin said that a court proceeding can easily swallow up a litigant’s bank account or home equity. “How can there be public confidence in a system of justice [based on our Charter] that shuts people out; that does not give them access?” she asked. “That’s a very dangerous road to follow.”
The Chief Justice’s voice rose as she discussed a monopoly lawyers have on legal services. “If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it,” she said. “And I don’t think it’s enough to say we are providing it for the rich and the corporations. You have to find a way to provide it for everybody.”
Other than the wealthy and corporations, who can hope to pay legal fees that average $338 per hour, leaving them little option but to represent themselves in court or go away empty-handed. It’s a growing problem that everyone in the legal community recognizes that needs to be addressed very soon or else the government will have to step in and they might not like the solutions forced upon them.
McLachlin cautioned that denying citizens access to courtrooms can endanger democracy. “On a macro level, access to justice promotes social stability,” she said. “It obviates the need for self-help and vigilantism. “We can draft the best rules in the world and we can render the best decisions, but if people can’t have access to our body of law to resolve their own legal difficulties, it is for naught,” she said.
Biased and Impartial Judges
If having access to justice is the first and a major hurdle to jump; and once you do gain access is our Court systems fair? What guarantees does one have that their arguments, especially for the absorbent legal fees that one pays, would be heard fairly, impartially and without bias? In the end, is the money worth spending?
Bias is an attitude or “state of mind,” not an easily provable “fact.” It is typically only in those rare instances when a judge verbalizes bias against a party or its counsel that a motion to recuse can successfully be made on this ground. Bias can creep in if the judge knows the complainants, has a particular affection for the subject matter being discussed, needs to judge that is in keeping with his/her political beliefs that got them the appointment or has a disinterest in the subject matter and/or outcome. Unconscious bias does creep into decisions, we all have it, and judges do involve themselves in development workshops to recognize what unconscious bias they have to become conscious of in future decision-making.
On CPAC’s Pillars of Democracy on the topic of Justice, one guest on the discussion panel noted, “People have different definitions and ideas of what justice is in different communities and within the justice system. Impartiality means absorbing lots of different points of view and our justice system doesn’t currently do that. Justice is not blind and we have a serious issue of impartiality [bias]. From collecting the information, analyzing it and making decisions. We had a (Harper) government that was partial, imposing minimum sentences where the judge cannot use the skills and tools at their disposal to hand out appropriate judgments and requiring by law that judges impose them when it is nowhere appropriate for the individual to serve that sentence. We’ve come out of a 10 year really aggressive law and order, it will be much easier to expand the law instead of restricting it. It would be more politically palatable to do that.”
Another participant cautioned, “Don’t confuse impartiality and neutrality with fairness. The law does say to take into account people’s circumstance and situations (i.e. indigenous lived experiences) That’s not discrimination [or bias] it’s lending fairness to a group of people who are normally marginalized. Sentencing judges need to take into consideration the background and systemic structure of all offenders when sentencing to all offenses.”
For example, the Seaboyer, the 1991 rape-shield case. Did the Criminal Code’s rape-shield provisions infringe the principles of fundamental justice or the right to a fair trial found in the Charter? They restricted the right of the defense to cross-examine and lead evidence of a complainant’s previous sexual conduct. McLachlin gave the reasons for a seven-member majority, ruling that the provisions were indeed unconstitutional. Said McLachlin: “A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.” Some feminists were outraged. But then, in the 1993 Symes case, in a dissenting judgment, she said that a tax law which did not permit deducting the cost of a nanny discriminated against working women. In this as in so many other areas, the chief justice cannot be pigeonholed.
Having a biased system and/or of judges creates social decay when people feel that they are targeted. We like to think that we are a land that is governed by the rule of law. But that doesn’t seem to be the case. Individuals are targeted by the system towards the system. “Our justice system is failing for the people who need it the most – the marginalized and indigenous peoples.” Chief Justice Beverly McLachlin “Judges should reflect the societies that they are serving since there’s a lot of incarcerated indigenous people (and from other cultures) we should have a justice body that is able to identify with them, to make more fit sentences.”
Remedying the situation has to begin with learning institutions; sensitivity training within the universities and police academies. Another area, from top-down, is within Parliament. A recent Globe and Mail article reported the Liberal government stressing diversity in launching a new process for appointing judges in October 2016. For the first time, applicants are being asked about their race, gender identity, Indigenous status, sexual orientation and physical disability. Members of the committees that screen candidates are also receiving training in “unconscious bias.”
“The reason we want women on the bench,” Mr. Hebert said, “is so that when women’s issues are before the court, or when women appear in court, there is a balancing of views. Same thing with race or other areas where we would want diversity. What we’re saying is the same considerations apply when you’re talking about the professional background of lawyers that are on the bench. There has to be a balance between the large-firm, insurance defense lawyers and other lawyers who are fighting for the rights of plaintiffs.” In its letter, the association said a more diverse judiciary will bring “varied perspectives to the development of the law and the concept of justice itself.”
Rape and Sexual Assault Cases
In speaking of having more women on the bench, another favorite question asked of McLachlin: how does being a woman influence her decisions? That debate began in 1990 when McLachlin had been sitting on the court for less than two years. In Hess, a rape case, she dissented from the majority judgment given by the great feminist judge and hero, Bertha Wilson. The appellants had been charged with sexual intercourse with a female under the age of 14. They thought she was older, but the Criminal Code said that belief was not a defense. The appellants said this provision infringed on the Charter, which provides that every individual is equal before the law because only men could be charged under the section. Wilson disagreed: “There are certain biological realities that one cannot ignore and that may legitimately shape the definition of particular offenses.” McLachlin took exception to the Wilson analysis. She said the provision “burdens men as it does not burden women. It offers protection to young females which it does not offer to young males. It is discriminatory.”
Then when someone on the inside suggested, when it was suspected that Antonio Lamer would soon be resigning as chief justice, McLachlin was careful not to be closely identified with any judgments that might prove controversial. In Ewanchuk, the infamous 1999 “no means no” sexual assault case, she did not join the five judges who agreed with justice John Major’s majority opinion or throw her lot in with Claire L’Heureux-Dubé’s aggressive concurring reasons which severely criticized the Alberta Court of Appeal. Instead, McLachlin gave an antiseptic one-paragraph concurring judgment that more or less agreed with everyone.
But then she wrote for the court’s majority in a 1991 case striking down the rape-shield law, which protected sexual-assault complainants from being questioned about their past sexual behavior. The law as written was unfair to the accused, she wrote in R v Seaboyer; the government was obliged to write a new one.
Thus, her career started as a disappointment to women’s rights advocates. “None of us was naïve enough to think that the new women judges would always rule in favor of women’s issues,” Constance Backhouse, who holds the University of Ottawa chair in sexual assault law, said in an e-mail. “But I think it is fair to say that many of us were very disappointed when Justice McLachlin wrote her decision striking down the protections that Parliament had passed.” Even so, Justice McLachlin showed she could not be easily pigeonholed – dissenting, along with Justice L’Heureux-Dubé in the Symes tax case in 1993 on whether childcare was a legitimate business expense.
Bias in [Sexual] Assault Cases
In assault and/or sexual assault cases there must be a reasonable apprehension of imminent harm. It does not matter if the defendant did not have the actual ability to cause harm as long as a reasonable person would have felt threatened. The fact that assault actions are rarely brought to term is probably the result of many factors and a disappointment to many.
First, there is the question of the expense of litigation. Where the plaintiff has suffered no physical harm but merely psychological distress, it is likely that even if the assault action were maintained, the expenses of the litigation would exceed the damages awarded. In view of the fact that the assessment of punitive damages tends to be quite low, where there are no real injuries there is little point in suing.
Second, it probably is felt by many that a lawsuit is an inappropriate way to respond to a typical assault. However, it still plays a valuable role in that it signals the common law’s concern in protecting not only tangible interests but the rights of individuals to live in peace, without fear of violence.
See Globe and Mail‘s Award-winning “Unfounded” series.
Battery, on the other hand, is treated more seriously within the court justice system, because in the legal sense, “battery is the intentional infliction of the unlawful force of another person.” Consent, expressed or implied, is a defense to battery. Failure to resist or protest is an indication of consent if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his/her objection. However, the consent must be genuine; it must not be obtained by force or threat of force or be given under the influence of drugs. Consent may also be vitiated by fraud or deceit as to the nature of the defendant’s conduct.” [Canadian Tort Law, p. 124]
Biased judges, unfortunately, is a sad reality we do have to face especially in cases of sexual assault. In a Guardian article, it cites the judge asking “Why just recently a prominent judge Justice Camp resigned from his position just before being removed from the bench. The Calgary trial made headlines around the world after it emerged that Camp had repeatedly asked the 19-year-old complainant why she had not done more to prevent the alleged rape. “Why couldn’t you just keep your knees together?” Camp asked her. Later he told her that “sex and pain sometimes go together”.
Camp’s resignation came shortly after the Canadian Judicial Council announced it had wrapped up its 15-month review into the judge’s conduct. The judicial watchdog concluded that Camp had relied on discredited myths, stereotypes about women and victim-blaming during the trial and noted in its report that Camp had at times addressed the complainant – a young indigenous woman who was homeless at the time of the alleged assault- in a manner that was “condescending, humiliating and disrespectful”.
In the case of Mandi Gray, the MacLeans Magazine reported “the lawyers for a Toronto man found guilty of sexual assault argued he deserves a new trial because the judge who oversaw his case was allegedly biased against him. In court documents filed ahead of the hearing, Ururyar’s lawyers allege the trial judge “displayed a reasonable apprehension of bias in favor of the complainant,” saying Justice Marvin Zuker had decided on a sentence before hearing submissions on the matter. The Crown, meanwhile, says the defense had no complaints about the judge’s behavior during the trial and only raised concerns about a possible bias once their client was found guilty. Before the hearing began, Gray said she wouldn’t participate in a new trial if one was ordered for Ururyar.
“It’s not worth it. I don’t have another two years to take off of my life to be doing this,” she said outside court. “I just don’t have the capacity to continue.” In his ruling, Zuker spoke out against what he called “the myths of rape,” specifically stereotypes that affect how those who experience sexual assault are perceived. Ururyar’s lawyers say those comments indicate a lack of objectivity from the judge.
And the National Post covered a story where a Nova Scotia judge acquitted a Halifax taxi driver of sexually assaulting a woman in his cab because he could not conclude that she had not consented to the encounter despite being extremely intoxicated. “Clearly, a drunk can consent,” said Judge Gregory E. Lenehan in finding Bassam Al-Rawi not guilty on Wednesday of sexually assaulting the woman in May 2015. The comments have sparked a fierce backlash from experts in sexual violence and online.
“The Crown failed to produce any evidence of lack of consent at any time when Mr. Al-Rawi was touching” the complainant, the judge ruled. “A lack of memory does not equate to a lack of consent.” The judge’s language suggesting someone that intoxicated can consent has prompted sexual violence experts to question the ruling. A number of complaints were sent.
“You can’t consent if you lack capacity and to equate incapacity with unconsciousness is wrong. Lack of capacity presumably begins at some point prior to unconsciousness,” said Craig who was among the legal experts who called for an inquiry into Justice Robin Camp. Craig said yet another case that speaks to the need for all sexual assault judgments to be delivered in written format. Oral judgments often go unnoticed if they aren’t reported in the press or appealed. Craig pointed to the Camp trial and Justice Robert Dewar, both of whom faced censure for oral rulings that could very well have been overlooked. Craig wondered how many other oral rulings include questionable stereotypes about women and said written judgments would provide a better picture. Craig said yet another case that speaks to the need for all sexual assault judgments to be delivered in written format. Oral judgments often go unnoticed if they aren’t reported in the press or appealed.
Drinking doesn’t cause sexual assault, rapists do.
JUST Act – Rona Ambrose
Rona Ambrose’s Private Members Bill – Judicial Accountability Through Sexual Assault Law Training Act (JUST Act) – got one step closer to becoming law when the House of Commons passed it unanimously on May 15th and sent it back to the Senate.
Deeply affected by her time as a student volunteer at the Victoria Sexual Assault and Sexual Abuse Crisis Centre, and the Edmonton Women’s Shelter, Ambrose has proposed legislation to require federal judges to take training on sexual assault law and related issues (topics that have been suggested include understanding the dynamics of sexual violence and the effects of trauma on behavior and memory).
The Bill will also require the Canadian Judicial Council to submit an annual report detailing which judges have undergone training, as well as who has not (and whether these judges nevertheless try such cases). The drive behind the Bill comes from the outrage and disgust following the comments of Robin Camp in a sexual assault trial in 2014 an the long, tortuous and at times amazing debate (we have to think this long and argue this much about whether to remove a public judicial officer who tells a victim she should have kept her legs together and saved everyone the trouble?) that eventually culminated in Robin Camp’s removal from the Bench earlier this year.
Ambrose said her bill, known as the JUST Act, wants to ensure lawyers who seek to become judges are better trained in sexual assault law and to ensure all judgments related to sexual violence are documented in writing.
“Only through more transparency and accountability around sexual assault cases will we be able to work towards building more confidence in our justice system. Right now, victims rarely report assaults or seek justice through the courts because some don’t have the confidence the system will be fair to them,” she said in a statement. “This has to change.”
Department of Status of Women
In A Mandate for Equality, author Nancy Peckford notes, “The complexities of representation within the House of Commons are such that many women have not been able to consistently exert a feminist analysis given the constraints of political parties. This is particularly true when considering the policy-making processes within the governing party and given the re-orientation of Canada’s economic policies since 1988 to one of corporate-led, free trade. The challenges confronted by feminist women in Parliament have been exacerbated by the fact that there is not yet a critical mass of female MPs in the House of Commons. As a result, addressing women’s representational realities must include a systematic examination of the electoral process by which women are selected for Parliament and the possibilities for coordination among equality-seeking women of all parties in the House of Commons.
Unfortunately, the increase in the numbers of women in the House of Commons compared to 20 years ago has not translated into the adoption of more progressive politics to improve women’s lives. In fact, through by virtue of their numbers, women have become somewhat more visible in the House and are fulfilling significant roles as Parliamentary committee chairs, Opposition critics and ministers, the socio-economic status of the majority of women across the country has actually deteriorated. Furthermore, Canadian feminist Lisa Young has argued that in many cases, the recruitment of high profile women by the dominant political parties record has helped to conceal the gravity of some key policy choices and their impact upon women:
Mainstream political parties can avoid and have avoided hard programmic commitments to the women’s movement by recruiting highly visible and like-minded women. The recruitment of these women cannot translate into changes in public policy because parties, particularly those pursuing policy agendas inspired by neo-conservatism, are unwilling to address the structural sources of women’s oppression (Young 1997: p85)
In her recommendation of having a stronger representation of women, indigenous and minorities in public office McLachlin has indicated that in doing so will strengthen our democracy by providing a better reflection of our multicultural landscape of Canada.
Strictly speaking of women, sadly we are losing the high-profile females who have championed causes for women’s concerns. Rona Ambrose (JUST Act), Joy Smith (human trafficking) and now Beverly McLachlin (gender equality) have all retired (or about to retire) with no one to replace them in championing causes. Even more concerning is the less aggressive measures of our Minister of Status of Women. Yes, there is lots of funding appropriated to creating shelters and safe spaces for women and their children escaping violence across the country but what else is the department doing?
For example, a small task force could have been organized to help the RCMP deal with its internal problem of the escalating sexual assault cases in support of our women in the Forces. Coordinating with RCMP HR department for sensitivity training and support for the legal hearing processes to ensure the Force operates with integrity and respect for women within the Force as well as for the women they are called upon to protect. And the Department could also be available to any other internal department within the Government who require similar services.
Taking the lead in organizing a network of women (non-partisan) in the House to determine a national women’s agenda pointing to areas where women’s issues need attention and allowing the women to remedy the challenges in the best way that they can within their political parties and networks. For example, the JUST Act legislation is currently held up and stalled in the Senate, what could any of those women, including the department as a whole, do to pressure the Senate to get this very important piece of legislation approved. Once approved will they have a hand and participate in ensuring the judge’s curriculum and roll-out of the legislation bring its intended benefits? We still have yet to find a high-profile woman to champion causes related to a national child care program – a program that many political parties have tried and failed at bringing about.
Is the department working with the MMIW inquiry bringing its expertise and resources to help bring families the much-needed closure they so desperately seek? Are they providing gender analysis tools to resource development areas where many women, especially indigenous are suffering from domestic, workplace violence and near poverty; are they reading reports from well-known organizations like Amnesty International who have done their own investigations, gender analysis and made recommendations to remedy the problem. Are they working closely with these reputable organizations implementing those recommendations since they’ve taken on the resources, time and energy to analyze and bring these problems to light? What are they doing to promote more women in politics and public office; any coordination efforts with organizations such as Equal Voice? International Women’s Day should be a flagship annual commemorative date; what are they doing to raise awareness of women’s issues to national status. Commemorative months April and May are months dedicated to bringing awareness to issues relating sexual assault, even October recognizing the efforts of Women’s. Basically, we need the Department of Status of Women to take lead; not be reactive and passive but proactive and assertive engaging in areas that clearly could benefit from their resources, time, expertise and all that they have to offer.
Decades after women obtained the right to vote, hoping to transform politics, it is time to acknowledge how our current political structure is incapable of serving the multiplicity of voices of a 21st century, multicultural Canada – voices it was not designed to accommodate in 1867. The sustained absence of women and other minority groups from elected office over centuries demonstrates the degree to which not only the needs of these constituencies but the institutions themselves must be scrutinized. The right legacy and ongoing practices of activism by diverse communities of women in a testimony to their commitment to a wide array of political processes at the local, national and international levels. Many feminists, after decades of thinking about how to accommodate women into current political structures, are now asking how the system can be reformed to better capture women’s civic engagement and enable women to pursue their goals for a just egalitarian society that a reformed electoral system is a more achievable goal: “changing a country’s electoral system often represents a far more realistic goal to work towards than dramatically changing the culture’s view of women”.
Certainly, a remarkable lady and a positive role model for next generations McLachlin revealed a conscious ambition to understand issues from the perspective of those most vulnerable. Her strong attachment to the Charter of Rights and Freedoms, the stuff of countless speeches she gave around the world, was clear when she was quoted saying, “The Charter is not some holy grail which only judicial initiates of the superior courts may touch,” she wrote. “The Charter belongs to the people. All law and law-makers that touch the people must conform to it.“
The country’s longest-serving Supreme Court chief justice, appointed by prime minister Jean Chrétien in 2000, and to the court by prime minister Brian Mulroney in 1989, announced that she will retire, effective Dec. 15, nine months before she reaches the mandatory retirement age of 75. McLachlin’s climb to success in her career was not of that hard ‘blood, sweat, and tears’ by championing some feminist agenda. In fact, many of her opportunities for advancement was due to sheer timing – being at the right place at the right time.
I say this, absolutely in no way to diminish her hard good work and accomplishments but McLachlin’s climb to success came at a time when the courts were becoming conscious of the fact that female representation was needed and called for in the courts. Her education followed a conventional path graduating at the top of her class, McLachlin practiced law for just five years, in Alberta and then in B.C., before joining the law faculty of the University of British Columbia as an associate professor. At age 37, she was appointed to the Vancouver County Court. Even she has acknowledged that being a woman may have helped. “Gender may have been a factor because at that time, there were very few women on the courts and they were looking for more, and there weren’t a lot of women out there to choose from.” Within just a few months, she was appointed to the Supreme Court of British Columbia. “I think I got carried along in this huge crise de conscience—we have no women judges, what are we going to do about it? And there was one that looked not too bad so they pushed me up very quickly.”
McLachlin is a unique head of the top court as the first woman appointed to the post and the longest sitting Supreme Court justice in Canadian history. Over the years, some court-watchers say, she evolved from a classical liberal determined to limit state intrusions on individual rights to a judge with an eye to the effects of laws on vulnerable people and a leader in writing about issues involving mental illness. This was where her vision of Canada took hold – of a country in which government does not foist harms on the vulnerable, be they sex workers, drug addicts or the severely ill seeking a way out from “the sanctity of life.“
What happens next after McLachlin retires? Who could possibly fill the shoes that left a big mark and influence on our justice system?
“… if I had one wish to make and one gift to give it would be for fuller representation of all groups of Canadian society in our democratic institutions; in our legislatures, in our parliaments, our Courts, in our local governments, in our school boards, on our hospitals boards and the list goes on. We need more women, more indigenous peoples, and more minority races in every facet of government and democratic governance only thus we can, Canadian democracy, fully represent the Canadian people. So that would be my present to Canada on its 150th Anniversary. ~ Beverly McLachlin
In keeping with McLachlin’s recommendation of having more representation of women, indigenous and minority representation, this gives our current “feminist” Prime Minister an opportunity to make his second appointment to the court – possibly even the first Indigenous appointee – to name a new chief justice, and thus deepen his imprint on the country’s top court.
Don’t screw it up!