Canadian Lawyer

C anada's chief justice chooses her words carefully as she reflects on how she would like history to remember the McLachlin court. "I would hope that I'm seen as a competent jurist who did her best to decide cases that came before her as well as she could and conscientiously," offers Beverley McLachlin. "I would hope with respect to my role as chief justice, I'm seen as having presided over a productive, respected court." In keeping with her no-nonsense style, she adds she is not one "for shopping lists for the court, bucket lists for my life." For those keeping track, however, McLachlin's list of accomplishments is astounding — and still growing. On Sept. 22, the country's first female top judge adds the distinction of becoming the longest-serving chief justice in the Supreme Court of Canada's 138-year history, surpassing Sir William Ritchie, who served as chief for 13 years and eight months, ending when he died in 1892. Early next year, McLachlin also marks 25 years on the high court, making her one of the most seasoned Supremes of all time. All this as she heads into the final stages of her judicial career. She turns 70 on Sept. 7, so she must retire from the bench within five years, in keeping with the mandatory retirement age of 75. If she stays on until the end, she will have been eclipsed only by Lyman Duff, who sat on the Supreme Court for 37 years. In an early May interview in McLachlin's office, overlooking the sun-splashed Ottawa River and Parliament Hill Peace Tower, she asserts she does not have any grandiose plans for her final years on the court, where she has sat since March 1989, when then-prime minister Brian Mulroney promoted her from chief justice of the British Columbia Supreme Court. Eleven years later, in January 2000, she replaced Antonio Lamer as Canada's top judge. McLachlin contends her objectives in her remaining time on the court are much as they have been throughout her tenure. "I think my goal is the more modest one of trying to make sure that we really come to grips with the issues we are facing in each case," she says. "Do we really understand the nature of the dispute and have we expressed our result in a way that makes it possible to apply the law without too much difficulty and that furthers respect for the law? These would be the kinds of things that I think about every day." It's vintage McLachlin, or at least the part of her she has shared publicly over the years. Measured and modest. Careful and contained. Judiciously and pragmatically refraining from venturing too far afield. It's much the way that court analysts and insiders have described the McLachlin court itself. "I think the court at this point in time very much bears the McLachlin hallmark, and although there are exceptions, I see the court as a cautious, as a pragmatic and compromise-seeking court," says Jamie Cameron, a constitutional law professor at Osgoode Hall Law School. "I think under her tenure that court has been fairly moderate and we've seen perhaps a more prudent, minimalist application of the law," adds Emmett Macfarlane, a University of Waterloo political scientist and author of the 2013 book Governing from the Bench: The Supreme Court of Canada and the Judicial Role. 26 J u ly 2013 www.CANADIAN L a w ye r m a g . c o m Macfarlane and Cameron stress they are being descriptive rather than critical — that caution, prudence, and minimalism can be positive, depending on whether one believes Supreme Court rulings should be big and expansive or more modestly narrow and incremental. While there is debate about whether there is a price to be paid for legal caution — more on this later — there is a general consensus among court watchers that there is now higher public regard for the institution than there was when McLachlin assumed the chief judgeship. On the eve of becoming the longest-serving chief, Canadian Lawyer takes a look at how the chief justice has skillfully employed what Supreme Court analyst Adam Dodek describes as "soft power" — gentle persuasion on the inside and gentle diplomacy on the outside — to deflect criticism from a court widely believed to be under siege when she assumed the leadership. "She has a job as the chief justice where you have very little formal power and much of what she has accomplished has to be through persuasion, what you might call soft power," says Dodek, a University of Ottawa law professor and co-editor of Public Law at the McLachlin Court, the First Decade. "As an effective leader I think she has set the tone and her colleagues have bought into this collective vision of the role of the court." Dodek, who clerked at the Supreme Court in 1999-2000, views the current chief as a highly successful ambassador for a bench that was going through a bit of a public relations crisis when she took over. It was taking hits from members of the federal Reform party, right-wing columnists, and several academics, who vocally accused the Supreme Court of what they decried as judge-made law, or overstepping the will of elected legislators. Those were the days when the bench was handling numerous monumental cases involving the 1982 Charter of Rights and Freedoms, and under fire in some corners for granting too many rights to the criminally accused. "I think the court as an institution when she took over was in a vulnerable position," says Dodek, expressing a widely held sentiment. "It was being attacked by the leading opposition party for judicial activism, it was getting a lot of negative coverage in the press. . . . If you look at where the court was in 2000 when she took over and where it is now, it's a much stronger court as an institution with her as a leader." Says Cameron: "There was a lot of negative attention in the 1990s and she's part of that experience. It's interesting to me that since she's been chief justice, the negative headlines, the negative editorials about the problems associated with the power of judges, that stuff has pretty much dropped off." Court watchers contend the turnaround is partly the result of circumstance — the chief justice herself says most of the big Charter issues have been settled and the court is now in a period of fine tuning. "There are fewer issues now," McLachlin offers as a reason for muted criticism. "I think the heady days of the '80s and early '90s, when you had this constant stream of Charter issues, simply because you had a new document and it had to be interpreted and there were questions coming up all the time, that has slowed, which is appropriate and natural in the constitutional evolution of things," she says. But attributing relatively smooth sailing at the Supreme Court to calmer Charter waters is only part of the story. The other element is said to be McLachlin herself. The day after she was elevated to chief justice, she held a press conference where she

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