Hit the Bench: Beverley McLachlin’s Reputation Takes a Dive in Retirement

Grant A. Brown
March 9, 2020
When Chief Justice of the Supreme Court of Canada Beverley McLachlin stepped down in 2017, she was regarded as one of the most consequential jurists in Canadian history, largely due to her court’s activist approach to the Charter of Rights and Freedoms. Her career arc was also widely considered a triumph of progressive feminism in the face of an entrenched legal patriarchy. That reputation is due for a re-assessment. Grant A. Brown sifts through the evidence of McLachlin’s autobiography and various post-retirement missteps, and unearths what he feels is a surprising lack of principle, objectivity and sound reasoning.

Hit the Bench: Beverley McLachlin’s Reputation Takes a Dive in Retirement

Grant A. Brown
March 9, 2020
When Chief Justice of the Supreme Court of Canada Beverley McLachlin stepped down in 2017, she was regarded as one of the most consequential jurists in Canadian history, largely due to her court’s activist approach to the Charter of Rights and Freedoms. Her career arc was also widely considered a triumph of progressive feminism in the face of an entrenched legal patriarchy. That reputation is due for a re-assessment. Grant A. Brown sifts through the evidence of McLachlin’s autobiography and various post-retirement missteps, and unearths what he feels is a surprising lack of principle, objectivity and sound reasoning.
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A re-evaluation of Beverley McLachlin, Canada’s longest-serving Chief Justice of the Supreme Court of Canada, is in order. This is necessitated by evidence arising after her 2017 retirement suggesting she’s not nearly as bright, impartial or principled as her record from the bench once established. Our brief consists of three items. First is her autobiography, Truth Be Told: My Journey Through Life and the Law, released last year, which offers new insight into her personal biases and worldview. Second, her public support for Beijing in a dispute over the independence of the Hong Kong Court of Final Appeal and its connection to her public battles with former Prime Minister Stephen Harper. Finally, her baffling behind-the-scenes involvement in the pressure applied to former Justice Minister Jody Wilson-Raybould in the SNC-Lavalin political scandal.

Let’s begin with some good news. McLachlin’s autobiography is an easy and often delightful read − linear, literate, and non-technical. In broad strokes, it tells the inspiring story of someone possessed of exceptional intelligence, iron determination and ample decency, rising from humble beginnings to the height of power and prestige in Canada. If fault can be found with her non-professional life, it’s that she carries petty grudges through an enormously charmed life. No occasion in which she finished second is allowed to pass without the injustice being highlighted. (She was not the valedictorian of her high school graduation class!) 

Further, it is undeniable that her tenure on the Supreme Court had an enormous impact on the shape of modern Canada. A member of the Supreme Court since 1989, she was Chief Justice for an unprecedented 17 years until her retirement. A list of her court’s most consequential decisions includes such totemic innovations as same-sex marriage, decriminalization of prostitution, the right to assisted dying, pay equity for federal employees and the invention of vast, mysterious and, until very recently, apparently open-ended new duties to consult with and accommodate Indigenous people.  

Rather than assess her skill as her own hagiographer or establish the weight of her working career, however, our aim here is to take McLachlin’s measure as a judge-in-retirement. Given a vast number of new personal insights arising from her autobiography, we are now able to consider certain questions of significance to any judge, past or present. What sort of mind does she possess? Does she suffer blind spots? Is she cautious in assigning malign motives to others? How consistent and sound is her reasoning?  

What we discover, unfortunately, is someone who epitomises the garden-variety prejudices, oversights and conclusions common to her academic and legal peers. There is no deep questioning of received wisdom, no examination of new evidence, no penetrating or original analysis of issues and no curiosity about how anyone could see the world differently. Such faults are most apparent when McLachlin flies her feminist colours, which is often. 

McLachlin views herself as a heroic feminist trail-blazer, hacking through the undergrowth of patriarchy and overcoming numerous male-oriented obstacles by sheer strength of character and intelligence. And some of her harshest criticism is directed at women who preferred traditional gender roles over blazing trails, including her own mother. “Although women were allowed to vote now, the ones I saw around me didn’t actually seem to be living lives equal to men,” she writes. “They were staying home with the children, obediently catering to their husband’s whims, watching each passing year whittle their dreams down to sad slivers of memory.” Yet as Truth be Told reveals, McLachlin has lived a life remarkable for its lack of obstacles or obedience. Doors were opened for her as fast as she could leap through them.

The “barriers” magically tumble down for a feminist on the fast-track

McLachlin’s career arc begins in “the dying days of August” in 1965. With a B.A. in philosophy, and a handful of acceptances to graduate schools at prestigious universities in Canada, the United States and Europe, she is dithering about what to do with her life. Her boyfriend (soon to be her first husband) is enrolled at the University of Alberta, and suggests she’d make a good lawyer. So she fires off a letter to the Dean of the Faculty of Law. Four days later she receives an acceptance to law school, starting the next week. 

During the summer after her first year of law school, McLachlin wanders into the only law office in her home town of Pincher Creek, a picturesque backwater in southwest Alberta, just to say hello. She recalls being “greeted… as if [she were] already a fellow lawyer,” is immediately hired and handed some files to work on. She also applies for a grant to do an M.A. in philosophy and receives a two-year scholarship.

Brown - Inset 2 (above)
Beverley McLachlin grew up in rural Pincher Creek, Alberta (top); and despite a stellar educational career, was not the valedictorian of her graduating class at Matthew Halton High School (bottom).
Beverley McLachlin grew up in rural Pincher Creek, Alberta (top); and despite a stellar educational career, was not the valedictorian of her graduating class at Matthew Halton High School (bottom).

Upon graduation in 1968, she takes her articles at the second firm she interviewed at. (She left in a snit from her first interview because the interviewer made mention of the fact she was married.) After a few years working at this law firm, she decides to follow her husband to Fort St. John, B.C., where she is “enthusiastically” hired by the biggest law firm in town. Normally, a lawyer called to the Bar in Alberta would have to practise for three years or complete another year of articles in B.C. before making such a move. This requirement was waived for McLachlin. And when she moves to Vancouver, she again instantly lands a job at a major law firm.

Appointed to the Supreme Court in 1989, Beverley McLachlin spent a record 17 years as Chief Justice.

After a few years in Vancouver, she decides to try her hand at teaching at UBC’s law faculty; the job is hers for the asking. A couple of years later she shifts to teaching full-time and in 1974 is handed a tenure-track position. There was no international search for candidates or competition for the position; the old boys’ network treated Bev as one of its favourites. Nor was her appointment at the entry level of lecturer or assistant professor, but a prestigious associate professor. This is what the fast-track looks like.

Then late in 1980, McLachlin has a chance encounter at a legal shin-dig with the Chief Justice of the Supreme Court of B.C. He asks her if she’d be interested in becoming a judge one day. A short while later, she receives a phone call from Justice Minister Jean Chretien . The old boy’s network is at it again and she’s offered a position as County Court judge. Five months later, she’s elevated to the Supreme Court of B.C. In 1985, she becomes the first female member of the B.C. Court of Appeal and three years after that is made Chief Justice of the B.C. Supreme Court. Finally, in 1989, she’s elevated to the Supreme Court of Canada. As one of her colleagues observes at her swearing-in ceremony, she moved through the judicial ranks faster than many cases. 

So how does McLachlin perceive her seemingly magical career trajectory? On her elevation to the Supreme Court of Canada, she writes, “Pundits hailed the appointment of a third woman to the court of nine as a remarkable advance for women’s rights. I was less convinced. …when I scanned the courtroom, I saw more male faces than female… What took us so long? I thought.” Presumably her selection as one of the most powerful judges in the country didn’t happen fast enough for McLachlin. But ever since she was appointed Chief Justice, half of all appointments to the Supreme Court have been women. Surely equality doesn’t get better than this.

Just one of the boys: Despite repeated claims she had to overcome entrenched sexism throughout her career, McLachlin rose swiftly and effortlessly through the judicial ranks.

McLachlin repeatedly claims to have faced numerous sexist barriers and discrimination throughout her career. But the examples she musters – a female colleague who protests she wasn’t given her own office, and then is immediately provided with one – fail to convince. She complains about male students, professors and colleagues telling “dirty jokes,” but later admits she appreciates her own brother’s “wicked and ribald sense of humour.” She characterizes rumours spread about women students and lawyers as “gossip that hurt” – yet men are just as likely to be hurt by rumours as women. 

A female lawyer is told by a judge that her skirt was too short; but no male lawyer would dream of appearing before a judge in short pants, or with his shirt unbuttoned to reveal a gold pendant on his hairy chest. Collectively, her evidence of pervasive sexism seems remarkably weak. If anything, it suggests a civilized, restrained environment remarkable for its lack of serious problems, let alone harassment or impropriety.

And in substantive discussions about gender-based issues such as employment equity, intimate partner violence, criminal sentencing disparities and other legal matters, McLachlin regurgitates feminist ideology and seems almost blind to the world around her. For example, the most recent advance in family law worthy of inclusion in her autobiography is 1973’s Murdoch v. Murdoch, a controversial decision that triggered a spate of statutes and reforms meant to ensure women receive an equal share of matrimonial property following divorce. But by considering family law exclusively from the female perspective, McLachlin deliberately ignores ample and more recent evidence showing how dramatically unequal child custody and financial arrangements can be for fathers in divorce cases. 

Cool with the Chi-coms, contemptuous of Harper

Since her retirement from the Supreme Court, McLachlin has been involved in several other circumstances that suggest a disappointing lack of circumspection. In 2018 McLachlin was appointed as a “non-permanent common-law judge” on Hong Kong’s Court of Final Appeal, a temporary post occasionally offered to retired judges from other countries. She quickly found herself mired in controversy, as many legal experts have complained that ex post “interpretations” of that court’s rulings by China’s National People’s Congress (i.e., the Communist oligarchy) pose a serious threat to Hong Kong’s judicial independence. 

Asked for her insider’s opinion on this issue late last year, after she had finished her stint and while bitter pro-democracy protests were ongoing throughout the former British colony, with hundreds of arrests and numerous injuries, McLachlin blithely declared Hong Kong’s judges to be “immune” to political pressure from mainland China. Political interpretations of court decisions are done “sparingly,” she said. Plus, she added, Beijing’s oversight does not “affect the actual judging of the judges in Hong Kong,” as these interpretations occur after they’ve done their job. Judicial independence is apparently alive and well in Hong Kong – even if its judges’ decisions are later negated by a Communist dictatorship. It’s an opinion that seems rather naïve; presumably the National People’s Congress considers McLachlin a useful idiot.

Brown - Inset 6 (above)
Retired and Reappointed: Chief Justice Beverley McLachlin leaves the Supreme Court of Canada for the last time in late 2017 (top); in 2018 she was temporarily appointed to Hong Kong’s Court of Final Appeal (bottom).
Retired and Reappointed: Chief Justice Beverley McLachlin leaves the Supreme Court of Canada for the last time in late 2017 (top); in 2018 she was temporarily appointed to Hong Kong’s Court of Final Appeal (bottom).

Her insouciant attitude toward General Secretary Xi Jinping’s control over Hong Kong’s high court contrasts sharply with her prickly and defensive attitude toward Harper’s “interference” while she was Chief Justice of Canada’s Supreme Court. Expressing umbrage at Harper over this issue takes up an entire chapter of McLachlin’s autobiography. 

The tale begins in early 2013 when an all-party Parliamentary Committee was struck to make recommendations to Cabinet on a replacement for the recently retired Justice Morris J. Fish. The workings of this committee are supposed to be strictly confidential, in part to promote candour from the witnesses, and to protect the reputations of candidates who are rejected. Committee members and witnesses swear an oath to say nothing about the process to anyone else.

Double Standard: McLachlin reports no concerns about the ability of China’s General Secretary Xi Jinping (left) to meddle in Hong Kong’s judicial decisions, yet devotes an entire chapter of her autobiography to decrying Prime Minister Stephen Harper’s (right) alleged “interference” with her court.

That July, as McLachlin relates in her autobiography, “I received a call from the chief justice of the Quebec Superior Court [François Rolland], advising me that rumour had it the government was planning to replace Justice Fish with a judge from the Federal Court of Appeal.” Alarm bells should have been ringing in McLachlin’s head as she was listening to this information, which could only have come to Rolland through a breach of confidentiality in the appointment process. Indeed, discussing the matter with Rolland was itself a breach of protocol, since witnesses to the Parliamentary Committee are not supposed to discuss confidential matters among themselves outside of the Committee process. McLachlin should have discreetly inquired where Rolland’s information had come from, then terminated the call and conveyed to Justice Minister Peter MacKay that there had been a possible breach of confidentiality and who it could be traced back to. 

Instead, Rolland’s leak set off a different set of alarm bells. The Supreme Court Act stipulates that Quebec is entitled to three judges, and the requisite trio must be appointed “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Since Justice Fish was a Quebec judge, replacing him with a judge from the Federal Court of Appeal was prima facie improper. Rolland recommended that McLachlin alert Justice Minister Peter MacKay to such a scenario.

Brown - Inset 9 (above)
In early 2013 François Rolland, Chief Justice of the Quebec Superior Court (top) provided McLachlin with leaked information about the government’s plan to appoint Federal Court Judge Marc Nadon (bottom) to the Supreme Court.
In early 2013 François Rolland, Chief Justice of the Quebec Superior Court (top) provided McLachlin with leaked information about the government’s plan to appoint Federal Court Judge Marc Nadon (bottom) to the Supreme Court.

Such a course of action was ill-advised. To begin with, it was unnecessary. The all-party Committee would have been well-versed in all eligibility requirements. They, or the Justice Minister, had almost certainly obtained a legal opinion on the matter, which would have advised that any concern over an appointment from the Federal Court of Appeal arises from an historical quirk. The Supreme Court Act had been written decades before the Federal Court system even existed and it was likely an oversight of Parliament not to have made an amendment to the Act to permit Quebec judges in the Federal Court system to be appointed to the Supreme Court. Judges from every other province or territory were eligible to be elevated from the Federal Court system to the Supreme Court; it would be plainly discriminatory not to allow Quebec judges in the Federal Court system to advance in this way. 

Second, acting on Rolland’s recommendation was ill-advised because judges are trained to treat “rumour” with extreme caution. Yet, untroubled by any practical or ethical concerns, McLachlin immediately “alerted the Prime Minister’s Office that [she] might wish to speak to Harper.” (Translation: She phoned the PMO asking for Harper; when told he was not available, she left a message for him to call her back. Nobody calls the Prime Minister to “alert” him that they “might” wish to talk.) She then tracked down MacKay and spoke to him about the presumptive nominee. One can imagine how shocked MacKay would have been at learning secret government deliberations had been breached, and that two Chief Justices were now attempting to insert themselves into the Justice Minister’s decision-making process. MacKay advised Harper not to take the Chief Justice’s call. It was good advice. 

 McLachlin’s autobiography offers a rousing nothing-to-see-here defence of her incautious intervention: “It wasn’t a big deal – just the routine sort of information that a justice minister might want to have before giving the prime minister his recommendation…” But there was nothing routine about the breach in the committee’s confidentiality, nor in her casual treatment of this highly confidential information, her preference for discussing sensitive and controversial matters over the phone without leaving a paper trail, or her instinct to go over the justice minister’s head and try to talk to the prime minister directly. 

At the end of September 2013, the appointment of Marc Nadon from the Federal Court of Appeal to the Supreme Court was announced. A challenge to the appointment by Toronto lawyer Rocco Galati was resolved by the McLachlin court in April 2014 with a 6-1 decision that declared Nadon ineligible based on a narrow, textual interpretation of the Supreme Court Act. It is a puzzling decision coming from a McLachlin-led court, given how it otherwise always avoided a strict constructionist view of the law.

McLachlin’s efforts in the Nadon affair included controversial efforts to contact both Prime Minister Stephen Harper (left) and Justice Minister Peter MacKay (right).

 McLachlin often waxes eloquent in her autobiography about how the law is a “living tree” that must be adapted to new circumstances and to new social understandings, sometimes to mean the exact opposite of what the written words say. Her court was constantly reminding lower courts that the law in Canada must be interpreted “purposively.” Upholding the Nadon appointment would have been well in keeping with the law’s overall purpose, as well as Parliament’s intent. Surely a court sensitive to institutional and systemic discrimination against Canada’s founding minority population should not abide such an arbitrary limitation on Quebec jurists. 

So why did the McLachlin court abandon its deeply ingrained judicial philosophy in favour of a strictly literal ruling? The most obvious answer is simple animus towards Harper. This speculation is reinforced by several other questionable rulings against Harper government initiatives on matters including minimum sentencing. Given that the Criminal Code is stuffed with all sorts of minimum and maximum sentencing provisions, why were Harper’s minimums uniquely deemed contrary to the Charter? McLachlin’s deep distain for Harper drips from the pages of her autobiography. She explains, for example, that she once considered naming a new dog Harper because it would be humorous to issue commands like, “Harper, sit!” and “Harper, lie down!” 

After Nadon was ruled ineligible, the Prime Minister’s Office responded to media queries by revealing that McLachlin had placed “inappropriate” phone calls to MacKay and Harper. At this point, McLachlin lashed out like a wounded wolverine. She issued a statement  declaring her version of the facts, with her main points being she was concerned only about the impact a challenge to Nadon’s appointment would have on the court’s workload, and that she never discussed the eligibility challenge’s merits with MacKay. 

 

In her autobiography she goes further, claiming she was only doing her “duty” in informing the justice minister. “There is simply no substance to the prime minister’s accusation of wrongdoing,” she writes, grandiloquently exonerating herself. McLachlin completes her program of self-vindication by citing “Legal groups, national and international, [which] weighed in to condemn the prime minister’s attack on me, and his affront to judicial independence.” Her triumphalism is noteworthy, but her hypocrisy is blinding. In McLachlin’s view, Harper’s justified allegation of inappropriate meddling in judicial appointments is a major threat to judicial independence while Xi Jinping’s overruling of legitimate judicial decisions by the Hong Kong Court of Final Appeal is no big deal. How curious. 

Ensnared in SNC-Lavalin’s tentacles – or embracing them?

Finally, for someone so exquisitely protective of her own reputation as a jurist, it is surprising how easily McLachlin seems to have been drawn into machinations meant to undermine the independence of the Public Prosecution Service and the Justice Minister, in aid of SNC-Lavalin. What little we know about McLachlin’s minor role in this drama comes from the report of the federal Ethics Commissioner known as Trudeau II

For someone so obviously concerned about her reputation, how did McLachlin allow herself to be drawn into the SNC-Lavalin scandal?

Recall the concerted backstage effort to get Jody Wilson-Raybould to direct the Public Prosecution Service to negotiate a deferred prosecution agreement (DPA) with SNC-Lavalin instead of litigating a criminal case. McLachlin’s former Supreme Court colleague Frank Iacobucci, now legal counsel to SNC-Lavalin, hatched a plan to convince various members of the government – in the PMO’s Office, the Finance Minister’s Office and the Clerk of the Privy Council – to pressure Wilson-Raybould into accepting some kind of intervention from McLachlin, who would then convince her that a DPA was the best way to go, and entirely legally kosher. 

McLachlin apparently informed Iacobucci that she no longer had standing to practice law in Canada, and therefore could not offer a legal opinion to Wilson-Raybould. But she nonetheless offered to mediate between the justice minister and SNC-Lavalin, if Wilson-Raybould could be pressured into engaging her in that capacity. Note that ethical codes for mediators typically demand complete neutrality. Since McLachlin had already been approached by SNC-Lavalin’s lawyer to advance their interests in this matter, the requisite impartiality was lost.

A nearly perfect thing? McLachlin’s post-retirement career reveals a surprising number of flaws, biases and personal blind spots.

While Iacobucci may not have apprised McLachlin of the full scope of his plan to manipulate Wilson-Raybould, it strains credulity to suppose she failed to understand that such an engagement would only be possible if her prior consultation with SNC-Lavalin was not disclosed. While this scheme was never put into action, McLachlin has made no public statement clarifying the role she proposed to play in this case. It is a significant omission. And, as with many other aspects of her post-retirement career, does her reputation no favours.

When asked about the flaws she sees in Canada’s legal system, McLachlin recounts in Truth be Told, her answer is always: “access to justice.” The law is a wonderful thing, she insists. A nearly perfect thing. The only problem is that people can’t always get before a judge to have their case properly heard and justice dispensed. Of course, such an attitude assumes judges themselves are perfect, or nearly so. As we are learning from her post-retirement record, however, McLachlin is not nearly as flawless, principled or heroic as she remembers herself to have been. 

Grant A. Brown has a DPhil from Oxford University and an LL.B. from the University of Alberta, taught applied ethics and political philosophy at the University of Lethbridge, practised family law, and currently runs a B&B in Stratford, Ontario.

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