Canadian Lawyer

While everyone is free to write if they want, Major points out nobody is going to challenge the chief if she decides she wants to write the majority decision. "If she volunteers that she would like to write, I don't think anybody would say 'so do I,'" he says. McLachlin has far more Supreme Court experience than the rest of the bench — Louis LeBel is second in seniority and he joined the court 11 years after McLachlin. The chief is also a prolific workhorse, writing close to 400 majority decisions in the last quarter century. As chief she has authored many of the court's most important and high-profile rulings, including the 2007 Charkaoui decision that struck down federal anti-terrorism security certificates, the 2001 Sharpe decision upholding Canada's ban on child pornography, a 2007 ruling that established a constitutional right to collective bargaining, the 2011 Insite decision that kept open Vancouver's safe-injection site for drug users, and the 2012 Khawaja ruling, which upheld Canada's anti-terrorism law. "She got a huge jump on all the other judges and so her depth of experience and her command of the institution give a lot of credence to her leadership," says Cameron. The McLachlin court has also handed down significantly more rulings than past courts that are signed "by the court" rather than any one judge, to emphasize unanimity and provide legal clarity. While "by the court" judgments were rare in the Lamer era, the court has done so almost a dozen times under McLachlin's watch, including rulings in the case of Saskatchewan farmer Robert Latimer, who was charged with first-degree murder in the death of his disabled daughter, the same-sex marriage reference in 2004, and the 2010 decision on Omar Khadr in which the court overturned two earlier rulings that had ordered the young Canadian's repatriation from Guantanamo Bay, Cuba, as compensation for his Charter rights being violated by visiting Canadian officials. McLachlin also has a voting record of a legal centrist (neither ideologically liberal nor conservative), which may also help breed consensus, assert academics Andrew Green and Benjamin Alarie, a former Supreme Court law clerk. In a 2009 study, the University of Toronto professors found McLachlin "rests squarely in the middle" of the court in the 106 Charter rulings from 2000 to 2009. "Chief Justice McLachlin's voting patterns could indicate she fosters cooperation and brings other judges to a common position," Alarie and Green speculated. They also noted "the chief justice's power to select panels provides an opportunity to both reduce panel sizes on certain appeals (which raises the likelihood of agreement) and select compositions which are more likely to foster a particular policy outcome." McLachlin is also widely credited with presiding over a collegial court — judges work with their doors open, they eat lunch together daily in the judges' dining room when the court is in session, they have cakes on their birthdays, they've done yoga together, and they socialize, albeit minimally, off the job. While collegiality doesn't necessary foster consensus, having a complement of judges who get along on a personal note, says Macfarlane, can help prevent cliques or voting blocs from developing — the sort of isolating cliques Bertha Wilson, the first woman appointed ™ A Noticeable Difference TORONTO I BARRIE I HAMILTON 1-866-685-3311 I www.mcleishorlando.com www.CANADIAN ntitled-2 1 L a w ye r m a g . c o m J u ly 2013 29 13-02-12 4:04 PM

• Cover