Canadian Lawyer

to the Supreme Court, spoke about in her 2002 biography by Ellen Anderson, or the often-cited "gang of five" that emerged on the court in the Lamer years which, controversially, frequently voted together to beef up rights for the criminally accused. McLachlin's collaborative approach is evident in the courtroom, says Eugene Meehan, an Ottawa lawyer and former executive legal officer at the court. "When you argue an appeal in the Supreme Court you notice she looks straight at you, with eye contact, but also noticeably looks right and left along the bench — by her very body language giving every visible sign of both being focused on the legal issue and at the same time being consultative and collaborative," says Meehan, a partner at Supreme Advocacy LLP, which helps parties prepare appeals. Despite the chief justice's efforts, the number of split decisions has not decreased significantly under her leadership, and she once wryly noted unanim- INHOUSE COMING IN August 2013 8th Annual INHOUSE/ACC General Counsel Roundtable This year our experts will examine the top challenges facing legal departments in Canada including succession planning, meeting the demands of regulatory and compliance matters as well as managing the increasingly complex relationship with external counsel. Read it online at www.canadianlawyermag.com/inhouse Live on July 29th Sponsored by For more information contact InHouse editor Jennifer Brown at jen.brown@thomsonreuters.com 30 2013 J u ly www.CA A Weirfoulds_Roundtable_CL_July_13.indd N1 D I A N L a w ye r m a g . c o m ity was strongest in her first year as chief justice. Court statistics show that from 2002 to 2012, the average annual rate of unanimous decisions was 72 per cent — which is only marginally better than it was during the Lamer era. However, Macfarlane points out the statistics are misleading because they don't reflect the fact there are significantly less separate concurring opinions on the McLachlin court, when judges agree on result but disagree on reasons. In other words, they speak with one voice significantly more often than they did under Lamer. Also, he says, McLachlin is far more likely than her immediate predecessors to put all nine judges on a case, instead of sitting seven or five. By doing so, she is increasing the likelihood of dissent because nine judges are less likely than five to agree. While McLachlin's quest for consensus has been lauded in the legal community, there is also emerging debate that agreement comes at a cost. Unanimous ruling can produce narrower decisions, in which some elements may be discarded as a trade-off for securing agreement from fellow judges, or broad, vaguely worded rulings in which judges fail to be too specific, contends Macfarlane. "With a unanimous decision that's been really hard fought for it's much more likely to read like that, to be that product of compromise where the court is much more cautious," he says. "I think we sometimes see the language that is the product of this co-operation be more vague than it otherwise would if we had a majority with a sharp dissenting opinion." Cameron laments what she considers a lack of debate in rulings involving some of the most pressing questions of our day. She cites, in particular, the December 2012 unanimous ruling in the case of former software developer Momin Khawaja, in which the court upheld the contentious definition of terrorism, a key element of the 2001 Anti-Terrorism Act. Two months after the Khawaja decision, the court handed down another unanimous decision in the case of anti-gay crusader William Whatcott, who ignited a fierce debate between free-speech and anti-hate advocates when he ran afoul of the Saskatchewan Human Rights Code. Unlike two previous Supreme Court decisions dealing with hate speech in the early 1990s, the Whatcott ruling was free 13-06-12 2:05 PM

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