Beverley McLachlin

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Beverley McLachlin

Beverley McLachlin (crop).jpg
Non-Permanent Judge of the Court of Final Appeal of Hong Kong
Assumed office
July 30, 2018
Appointed byCarrie Lam
17th Chief Justice of Canada
In office
January 7, 2000 – December 15, 2017
Nominated byJean Chrétien
Appointed byAdrienne Clarkson
MonarchElizabeth II
Prime Minister
Governor General
Preceded byAntonio Lamer
Succeeded byRichard Wagner
Puisne Justice of the Supreme Court of Canada
In office
March 30, 1989 – January 7, 2000
Nominated byBrian Mulroney
Appointed byJeanne Sauvé
Preceded byWilliam McIntyre
Succeeded byLouis LeBel
Chief Justice of the Supreme Court of British Columbia
In office
1988–1990
Appointed byJeanne Sauvé
Personal details
Born
Beverley Gietz

(1943-09-07) September 7, 1943 (age 75)
Pincher Creek, Alberta, Canada
CitizenshipCanadian
Spouse(s)
  • Roderick McLachlin
    (m. 1967; died 1988)
  • Frank McArdle (m. 1992)
ChildrenAngus McLachlin (b. 1976)
Alma materUniversity of Alberta
ProfessionJudge

Beverley Marian McLachlin, PC CC CStJ (born September 7, 1943) is a Canadian jurist and author who served as the 17th Chief Justice of Canada from 2000 to 2017, the first woman to hold that position and the longest serving Chief Justice in Canadian history. In her role as Chief Justice, she also simultaneously served as a Deputy of the Governor General of Canada.

McLachlin retired December 15, 2017, nine months before reaching the mandatory retirement age of 75.[1] Her successor as Chief Justice of Canada is Richard Wagner, who was nominated by Prime Minister Justin Trudeau in 2017.[2] Her successor as a Justice of the Court is Sheilah Martin, who was nominated by the Prime Minister through a new process for judicial appointments to the Supreme Court of Canada that permitted "any Canadian lawyer or judge who fits a specified criteria" to apply.[3][4][5]

In March 2018, McLachlin was nominated to become a non-permanent judge on the Hong Kong Court of Final Appeal, the first Canadian jurist nominated to the post.[6] The appointment was gazetted and came into effect July 30, 2018, for a three-year term.[7]

Early life and family[edit]

McLachlin was born Beverley Gietz in Pincher Creek, Alberta, the eldest child of Eleanora Marian (née Kruschell) and Ernest Gietz. Her parents, who were of German descent, were "fundamentalist Christians"[8][9] of the Pentecostal Church.[10] She received a B.A. and an M.A. in philosophy and an LL.B. degree (winning the gold medal as top student and serving as Editor-in-Chief of the Alberta Law Review) from the University of Alberta. She was called to the Bar of Alberta in 1969 and to the Bar of British Columbia in 1971. She practised law from 1969 until 1975. From 1974 to 1981, she was an Associate Professor and Professor with tenure at the University of British Columbia.

She has one son, Angus (born 1976), from her first marriage to Roderick McLachlin, who took care of much of Angus's upbringing.[10] Her first husband died of cancer in 1988, a few days after she was appointed chief justice of the B.C. Supreme Court.[10] In 1992 she married Frank McArdle, a lawyer and executive director of the Canadian Superior Courts Judges Association.[10]

Career as a judge[edit]

Canada[edit]

In April 1981, McLachlin was appointed to the County Court of Vancouver. Just five months later, she was appointed to the Superior Court of British Columbia. In 1985 she was appointed to the British Columbia Court of Appeal, three years later in 1988 she was appointed Chief Justice of the Supreme Court of British Columbia. She was nominated by Brian Mulroney to be made a Puisne Justice to the Supreme Court of Canada on March 30, 1989.[10] On the advice of Jean Chrétien, she was made Chief Justice of Canada on January 7, 2000.[11]

Upon being sworn into the Supreme Court of Canada, she also became a Deputy of the Governor General of Canada together with the other justices of the Supreme Court.

When Governor General Adrienne Clarkson was hospitalized for a cardiac pacemaker operation on July 8, 2005, McLachlin performed the duties of the Governor General as the Administrator of Canada.[12] In her role as Administrator, she gave royal assent to the Civil Marriage Act which legalized same-sex marriage nationally in Canada.[12] She relinquished that task when the Governor General returned to good health in late July.

She is the Chairperson of the Canadian Judicial Council, on the Board of Governors of the National Judicial Institute, and on the Advisory Council of the Order of Canada. She is a Member of the Queen's Privy Council for Canada. She was made a Commander of the Legion of Honour by the Government of France in 2008.[13][14] On December 15, 2006, she was appointed Commander of the Venerable Order of Saint John.[15]

McLachlin has defined her function as one that requires conscious objectivity, which she describes as follows:[10]

What you have to try to do as a judge, whether you're on charter issues or any other issue, is by an act of the imagination put yourself in the shoes of the different parties, and think about how it looks from their perspective, and really think about it, not just give it lip service ...

As a judge, and I've been a judge for a long time, I have always resolved to just try to judge the issues as honestly as I can, and not to think about things in too strategic a manner. My job is simply to listen to what the parties have to say, and to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to, also, my eight other colleagues. So there's a consensual element there.

McLachlin has stated, "I think the court belongs to the Canadian people and it should reflect the Canadian people." In the opinion of an interviewer, this is "not only to convey an impression of balance, but to bring in perspectives that were so long absent from the judicial imagination. To her, judgment is not a coldly neutral evaluation of competing positions, robotically free of passion or perspective. It is an engaged, human act of imagination."[10]

The Supreme Court, under McLachlin, ruled against the former Conservative government of Stephen Harper on several important issues, including prostitution, assisted suicide, mandatory minimum gun crime sentences, Senate reform, whether Taliban fighter Omar Khadr deserved an adult sentence, and whether Federal Court judge Marc Nadon could be elevated to the Supreme Court.[10]

McLachlin surpassed Sir William Johnstone Ritchie as the longest-serving Chief Justice of Canada in history on September 22, 2013.

Hong Kong[edit]

McLachlin was nominated in March 2018 to become a non-permanent member of the Court of Final Appeal in Hong Kong. The Court appoints foreign judges from common-law jurisdictions outside of Hong Kong, of which McLachlin is the first Canadian, to sit as non-permanent members of the court.[16] Her appointment was approved by the Hong Kong Legislative Council,[17] and the Chief Executive gazetted the appointment effective July 30, 2018. McLachlin's appointment was accompanied by the ones of Baroness Hale of Richmond, also as non-permanent judge, and Mr Justice Cheung, as permanent judge, at the court.[18][19] In the same year, she published a legal thriller novel entitled Full Disclosure.[20]

Judgments[edit]

During her early years on the Supreme Court, she was characterized as a judge with libertarian leaning after her dissent in R v Keegstra, finding that the hate-speech criminal offences were unconstitutional, and her judgment in R v Zundel where she struck down the criminal offence of spreading false news. This was also seen to an extent in her decision of R v Sharpe where she upheld the child pornography criminal provisions, but limited it by excluding imaginative works that are for private use. During this, she also ruled that the laws should apply to fictional depictions, declaring that 'person' would include fictional people as well as real people:[21]

Interpreting "person" in accordance with Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that 'person' in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s. 163.1(1)(a) includes both actual and imaginary human beings.

— Supreme Court of Canada, R v Sharpe, Paragraph 38

Among her more controversial decisions was her ruling in R v Seaboyer, in which she struck down the rape shield law because it violated the right to a fair trial of those accused of sexual assault.

McLachlin has tried to forge additional consensus in the court's decisions, often writing controversial decisions herself to forge that consensus. In doing so, she is widely recognized for "still writing lots of judgments in her own clear style".[22]

The Supreme Court unanimously ruled on February 6, 2015, that the prohibition on assisted suicide was unconstitutional and overturned its own prior decision on the subject from 1993, Rodriguez v British Columbia (AG). McLachlin wrote the dissent in the 1993 case and was the only Justice from that era remaining on the court in 2015.[23]

Controversies[edit]

Nadon Incident (2014)[edit]

In July 2013, during the consultation period prior to appointment for Marc Nadon, Chief Justice McLachlin contacted justice minister Peter MacKay and the Prime Minister's Office regarding the eligibility of Marc Nadon for a Quebec seat on the Supreme Court.[24] Prime Minister Stephen Harper stated that he had refused a phone call from McLachlin on the Attorney General's advice. Harper's comments were criticized by the legal community and a complaint was forwarded to the International Commission of Jurists in Switzerland.[25][26] The International Commission of Jurists concluded that Beverly McLachlin deserved an apology from Harper, but none had been given as of July 2014.[27]

McLachlin charges Canada with cultural genocide (2015)[edit]

In May 2015, McLachlin was invited to speak at the Global Centre for Pluralism, and said that Canada attempted to commit "cultural genocide" against aboriginal peoples in what she called the worst stain on Canada's human-rights record.[28] University of Regina academic Ken Coates was quick to support McLachlin, and said that she was "only stating what is clearly in the minds of judges, lawyers and aboriginal people across the country".[29]

Others were far less sympathetic. Columnist Lysiane Gagnon called the comments "unacceptable" and "highly inflammatory" and suggested that McLachlin had opened herself up to accusations of prejudice.[30] Gordon Gibson, another columnist, said the use of the word "genocide" was incendiary and disproportionate and that the Chief Justice's comments made her sound like a legislator.[31]

Honorary Degrees and other awards[edit]

She is the Honorary Patron of the Institute of Parliamentary and Political Law. She has also been awarded the Yes She Can Award from Balmoral Hall School in 2005. She is currently the Visitor of Massey College, an interdisciplinary graduate college for students of distinguished ability at the University of Toronto.[32] She has been awarded with over 31 Honorary Degrees from various universities, which include:

Honorary Degrees
Location Date School Degree
 British Columbia 27 September 1990 University of British Columbia Doctor of Laws (LL.D)[33][34]
 Alberta 1991 University of Alberta Doctor of Laws (LL.D)[35]
 Ontario June 1995 University of Toronto Doctor of Laws (LL.D)[36]
 Ontario Spring 1999 York University Doctor of Laws (LL.D)[37]
 Ontario 2000 Law Society of Upper Canada Doctor of Laws (LL.D)[38]
 British Columbia 2000 Simon Fraser University Doctor of Laws (LL.D)[39]
 Alberta 2000 University of Calgary [40]
 Ontario 2000 University of Ottawa Doctor of the University (D.Univ)[41][42]
 Ontario 8 June 2000 Brock University Doctor of Laws (LL.D)[43]
 British Columbia November 2000 University of Victoria Doctor of Laws (LL.D)[44]
 Alberta Spring 2001 University of Lethbridge Doctor of Laws (LL.D)[45]
 Nova Scotia 2002 Mount Saint Vincent University Doctor of Humane Letters (DHL)[46]
 Prince Edward Island 2002 University of Prince Edward Island Doctor of Laws (LL.D) [47]
 Quebec 2003 Université de Montréal Doctorate [48]
 Nova Scotia 2004 Dalhousie University Doctor of Laws (LL.D)[49]
United Kingdom Northern Ireland 2004 Queen's University Belfast Doctor of Laws (LL.D)[50]
 Manitoba 27 May 2004 University of Manitoba Doctor of Laws (LL.D)[51]
 Ontario 14 November 2004 Carleton University Doctor of Laws (LL.D)[52][53]
 Maine 7 May 2005 University of Maine at Fort Kent Doctor of Humane Letters (DHL)[54][55]
 Philippines 2006 Ateneo de Manila University Doctor of Laws (LL.D)[56]
 Ontario 18 June 2010 University of Windsor Doctor of Civil Law (DCL)[57][58]
 Ontario 2010 Ryerson University Doctor of Laws (LL.D)[59]
 Nova Scotia 2010 Cape Breton University Doctor of Laws (LL.D)[60][61]
 Ontario 2011 Queen's University Doctor of Laws (LL.D)[62]
 Quebec June 2011 Concordia University Doctor of Laws (LL.D)[63]
 Ontario 26 October 2012 University of Western Ontario Doctor of Civil Law (DCL)[64]
 Ontario 2012 Lakehead University Doctor of Laws (LL.D)[65]
 Scotland 2014 University of Edinburgh Doctorate[66]
 Quebec 2015 Bishop's University Doctor of Civil Law (DCL) [67]
 Ontario 31 May 2016 Laurentian University Doctor of Laws (LL.D) [68][69]
 Quebec   Université de Montréal Doctor of Laws (LL.D)
 Massachusetts   Bridgewater State College Doctor of Laws (LL.D)
 Quebec 1 June 2016 McGill University Doctor of Laws (LL.D) [70]
 Alberta 28 April 2017 Lethbridge College Bachelor of Applied Arts [71][72]
 Newfoundland and Labrador 19 October 2017 Memorial University of Newfoundland Doctor of Laws (LL.D) [73]
Ribbon bar of The Right Honourable Beverley McLachlin

See also[edit]

Book[edit]

References[edit]

  1. ^ MacCharles, Tonda (June 12, 2017). "Chief Justice Beverley McLachlin to retire from Supreme Court of Canada". Toronto Star.
  2. ^ "Prime Minister names the Honourable Richard Wagner as new Chief Justice of Canada". pm.gc.ca (Press release). PMO. December 12, 2017. Retrieved December 12, 2017.
  3. ^ Justin Trudeau (August 2, 2016). "Why Canada has a new way to choose Supreme Court judges". The Globe and Mail. Retrieved April 24, 2017.
  4. ^ "New process for judicial appointments to the Supreme Court of Canada" (Press release). Government of Canada. August 2, 2016.
  5. ^ "Prime Minister announces nomination of the Honourable Sheilah L. Martin to the Supreme Court of Canada". pm.gc.ca (Press release). PMO. November 29, 2017.
  6. ^ Appointment of non-permanent judges from other common law jurisdictions of the Court of Final Appeal
  7. ^ Hong Kong Gazette Notice GN5815/2018
  8. ^ "'Justice lies at the heart of what Canada is'". Pqasb.pqarchiver.com. Retrieved February 17, 2016.
  9. ^ Philip Slayton (September 7, 1943). Mighty Judgment: How The Supreme Court Of Canada Runs Your Life. Books.google.ca. ISBN 9780143180517. Retrieved February 17, 2016.
  10. ^ a b c d e f g h "'Conscious objectivity': That's how the chief justice defines the top court's role. Harper might beg to differ | National Post". News.nationalpost.com. Retrieved February 17, 2016.
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  12. ^ a b "Canada's Chief Justice lays down the law | The Journal". www.queensjournal.ca. Retrieved October 13, 2015.
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  19. ^ "Hong Kong's top court gets two female foreign judges in historic first".
  20. ^ "How Beverley McLachlin wrote her first thriller while holding a full-time job as Chief Justice of Canada". Toronto Star, May 11, 2018.
  21. ^ "Supreme Court of Canada - Decisions - R. v. Sharpe". Archived from the original on April 30, 2008. Retrieved April 28, 2008.
  22. ^ [1][dead link]
  23. ^ Macfarlane, Emmett (February 6, 2015). "On assisted suicide, the Supreme Court confronts Parliament's cowardice". Maclean's. Retrieved February 6, 2015.
  24. ^ "News Release - SCC Cases (Lexum)". Scc-csc.lexum.com. Retrieved February 17, 2016.
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  29. ^ Ken Coates. "McLachlin said what many have long known". The Globe and Mail. Retrieved February 17, 2016.
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  53. ^ "Comic | Carleton Now". Carletonnow.carleton.ca. February 7, 2016. Archived from the original on May 1, 2015. Retrieved February 17, 2016.
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  63. ^ "Honorary Degree Citation - Beverley McLachlin | Concordia University Archives". Archives.concordia.ca. January 7, 2000. Retrieved February 17, 2016.
  64. ^ "The University of Western Ontario : Honorary Degrees Awarded, 1881-present" (PDF). Uwo.ca. Retrieved February 17, 2016.
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  69. ^ "Archived copy". Archived from the original on October 13, 2018. Retrieved October 13, 2018.CS1 maint: Archived copy as title (link)
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  73. ^ "FALL CONVOCATION 2017" (PDF). Mun.ca. Retrieved September 1, 2018.
  74. ^ Makin, Kirk. "Beverley McLachlin". The Canadian Encyclopedia. Retrieved April 8, 2018.

External links[edit]

Order of precedence
Preceded by
Stephen Harper
as Former Prime Minister
Order of Precedence of Canada
as Former Chief Justice
Succeeded by
George Furey
as Speaker of the Senate of Canada