Beverley McLachlin: The Legacy of a Supreme Court Chief Justice

By Jay Smith

by Ian Greene and Peter McCormick
Lorimer
2019/$29.95/232 pp.

With her retirement from the Supreme Court of Canada in 2017, a certain genre of Beverley McLachlin hagiography has emerged. The first woman to serve as Chief Justice, McLachlin cuts a formidable figure. She penned pivotal decisions in her years on the court, including Carter (enabling medical assistance in dying), Bedford (improving the welfare of sex workers) and Insite (defending supervised injection sites). This new book—by Peter McCormick, a retired professor at the University of Lethbridge, and Ian Greene, professor emeritus at York University—is a punchy, if glossy, paean.

Born in 1943 in Pincher Creek, McLachlin was raised in rural isolation. Her parents were farmers, Pentecostal German immigrants, who instilled in McLachlin an intellectual curiosity that outweighed God-fearing. She took some of her early education via correspondence and insisted on boarding school, eventually taking degrees at the University of Alberta. There she graduated with top grades—receiving her LLB simultaneously with her MA in philosophy. She practised in litigation, taught at UBC, then became a judge at the Superior Court of British Columbia. In 1989, at the age of 46, McLachlin was appointed to the Supreme Court of Canada.

During the 1980s and 1990s, the court spent much of its energies interpreting the Charter of Rights and Freedoms, which had come into force in 1982. While Canada had previous human rights instruments, this was an inevitably seismic period. Suddenly the court was considering not just whether the Charter protected women’s rights to timely abortions (it did) but how our legal legacy had failed to imagine that women were full legal subjects. What did equality mean for gay people? For non-citizens? For common-law spouses?

In Gosselin the court had to contemplate whether Charter protections for life, liberty and security of person entailed the right not to live in poverty. The McLachlin majority said no. These moments, glossed over in this book, are challenges to the oft-forgotten fact that she was appointed by a Conservative prime minister. Scratch the surface and McLachlin’s philosophy tracks a less effusively broad-minded trajectory.

Consider: McLachlin also wrote the decidedly less cheerfully Canadian decision of Hutterian Brethren, which curtailed the religious freedoms of small Hutterite communities near her hometown in favour of the “War on Terror.” In that case, the question was whether 400 individuals could have driver’s licenses without photographs, since being photographed violated their religious beliefs. McLachlin argued they could go without driving—living in the rural remoteness she knew intimately—and simply catch a cab to take their pigs to market. This is a tuneless position, a sore thumb of 9/11-era thinking. Did anyone really think 400 farmers with pictureless drivers’ licences would unravel the entire fabric of our society? Apparently. And while the stringency of Hutterian Brethren scaffolds good, subsequent decisions—Trinity Western’s denying Christian law schools from banning LGBTQ+ students, for instance—it also underpins the failure of Canadian justice to recognize the holistic legal–religious order of an Indigenous community (Ktunaxa). McLachlin’s legacy is not all sunshine and pluck. But you wouldn’t know it from Greene and McCormick’s book.

But all of this is somewhat unfair. This is a short book, meant to introduce readers to McLachlin and the scope of her Supreme Court. It’s a clean overview of who she was as a judge and of issues raised in the post-Charter decades. But don’t let the authors convince you that McLachlin’s legacy is free of false notes, nor that we should view it without a critical eye.

Jay Smith is a long-time Alberta Views reviewer in Edmonton.

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