The McLachlin Era: A Retrospective (Part I)

Author’s Note: The author would like to thank Professors Benjamin Berger, Signa Daum Shanks, and Bruce Ryder for their generous and thoughtful contributions, without which this post would not have been possible.

It has now been a few months since the retirement of the Right Honourable Beverley McLachlin from the role of Chief Justice of Canada. Her successor, Chief Justice Richard Wagner, has been cordially welcomed by the Court, and all indications are that the transition of leadership has been smooth and collegial. While in the coming months the former Chief Justice may participate in some important rulings on appeals heard before her retirement (i.e. Trinity Western, Comeau), it now feels appropriate to begin what will undoubtedly be a long and important series of reflections from the legal world on the McLachlin era and its impact on Canadian jurisprudence. Part I of this two-part post undertakes a statistical analysis of the era, offering insight into the sheer scope of McLachlin’s tenure, as well as her specific role in shaping the decisions of the Court. The post then moves into a discussion of one of the more significant contributions of the McLachlin Court; namely, the expansion of fundamental freedoms under section 7 of the Charter. Spearheaded by the former Chief Justice, the McLachlin Court took a clear and unwavering stance on the importance of robust constitutional protections for the individual.

Part II will then open up a discussion of what may be the biggest overall disappointment of the Court—its hesitancy to fundamentally shift the framework used to analyze and approach Indigenous issues. Despite several decisions that took positive steps to advance the rights and powers of Indigenous groups, including Haida Nation v British Columbia, 2004 SCC 73, Tsilhqot’in Nation v British Columbia, 2014 SCC 44, and most recently, Daniels v Canada, 2016 SCC 12, the McLachlin Court shied away from taking the drastic (but necessary) steps required to fundamentally alter our law’s approach to Indigenous issues and provide a real path for Reconciliation. This challenge now falls to the Wagner Court.

Finally, the post will consider (and celebrate) the lasting impact of the former Chief Justice and her significance, not only as a jurist, but as a leader of one of Canada’s most important institutions.

A Statistical Analysis of the McLachlin Era

In order to begin to wrestle with the impact of the McLachlin era, it is crucial to start by outlining the sheer breadth of the period. Between her appointment as Chief Justice on January 7th 2000 and her retirement on December 15th 2018, a total of 19 Justices sat on the court, delivering judgements in approximately 1,288 cases (an average of 72 per year).[1] Of these cases, 531 (41.2%) were criminal, with the remaining 757 (58.8%) being civil.

In terms of its treatment of these cases, the Supreme Court allowed appeals in 567 of the 1,288 cases, or 44 percent, while it dismissed 666, or 51.7 percent (the remaining 4.3 percent of cases involved motions, actions, or multiple appeals in which the Court granted certain appeals but denied others). One level deeper, the percentage of appeals allowed in criminal cases was only 40 percent (a product, no doubt, of the fact that As of Right appeals make up a significant proportion of criminal appeals at the Supreme Court), while civil appeals were allowed in 46% of cases. These figures suggest that raising one’s case to the highest court and succeeding, particularly in criminal matters, was not an easy feat during the McLachlin era.

The former Chief Justice’s personal involvement in these cases is notable. Of the 1,288 appeals heard by the Court during her tenure, Chief Justice McLachlin was present for 1,070, or 83.1 percent. Of these, she authored opinions in 252. This number—which does not include her opinions as a Puisne Justice on the Court between April 1989 and January 2000—almost certainly makes her the most prolific Supreme Court Justice in Canadian history.

Perhaps a sign of her ability to persuade others, the former Chief Justice rarely dissented, authoring dissenting opinions only 23 times and joining others only 44 times; a total of 67 dissents across an 18-year period. Similar numbers appear for concurrences, with McLachlin involved in concurring opinions only 45 times (4.2%). Overall, then, McLachlin’s side almost always won, with 89.2 percent of opinions she was involved in becoming the law. To me, this suggests quite clearly that McLachlin’s voice was not only powerful, but reasonable; she was able to identify the result—and the path to reaching that result—that resonated most strongly with her colleagues as achieving justice.

Another interesting insight to be drawn from an analysis of the McLachlin Court’s decision-making is the level of consensus. In cases during the era, the Court came to a unanimous decision (731 times) or a “By the Court” decision (62 times) in 61.6 percent of appeals. In other words, more often than not, the panel of Justices, or the Supreme Court as a whole, was in agreement. Given the range and complexity of contentious issues dealt with by the Court, as well as the varying backgrounds and perspectives of the individual Justices, this level of consensus is impressive; it speaks to the former Chief Justice’s leadership abilities and her recognition that a unified Court is a more powerful and reliable tool for progress than one divided.

On this point, it is clear that, during McLachlin’s tenure as Chief Justice, the Supreme Court developed a powerful institutional voice and identity that perhaps did not exist prior. Evidence of this unified voice can be found in the McLachlin Court’s use of “By the Court” decisions. A technique re-introduced to the modern Supreme Court by former Chief Justice Laskin in the late 1970s, the McLachlin Court consistently and strategically employed “By the Court” as a means of sending a powerful and unanmbiguous message (Claire L’Heureux-Dubé, “The Dissenting Opinion: Voice of the Future?” at 500-01). During the period, the Court rendered decisions “By the Court” 62 times, or in 4.8 percent of cases. While this frequency is not especially notable considering the Dickson Court’s use of the technique in 9.8 percent of its decisions, the McLachlin Court’s substantive use of “By the Court” is arguably the most “targeted and deliberate” (Peter McCormick, ““By the Court”: The Untold Story of a Canadian Judicial Innovation” at 1066). According to Professor Peter McCormick, the McLachlin Court’s use of “By the Court” shows the most conscious effort to signal “major and landmark contributions to unsettled corners of the law,” particularly with regards to “federalism issues, Charter questions, and First Nations matters” (1069). Notable decisions on this list include R v Latimer, 2001 SCC 1, R v Powley, 2003 SCC 43, Reference re Same-Sex Marriage, 2004 SCC 79, BCE v 1976 Debentureholders, 2008 SCC 69, Reference re Securities Act, 2011 SCC 66, Reference re Senate Reform, 2014 SCC 32, and Carter v Canada, 2015 SCC 5 [Carter].

These figures thus suggest that the McLachlin Court was one characterized by unanimity. According to Professor Benjamin Berger, however, to leave the analysis here would be overly simplistic and perhaps misleading. For Professor Berger, the McLachlin Court was not, by any means, devoid of disagreement or difference, particularly on important issues. For instance, in recent decisions R v Marakah, 2017 SCC 59, and R v Bradshaw, 2017 SCC 35, both of which mark important moments in the advancement of criminal law jurisprudence, dissenting opinions were integral to a recognition of the complexity of the issues and the need to “memorialize differences of opinion”—one of the important functions of Supreme Court reasons. In other words, while consensus was an important feature of the Court’s decisions under McLachlin, it is important not to let such qualities override the larger, more nuanced approach of the Court. Further, one must understand that, even where the Court did reach consensus on important legal issues, such consensus was a product, not only of an effort to establish a strong and unified voice for the Court, but also of the Court’s ability to truly work through issues to come to positions that the entirety of the Court could promote, in good conscience, as their own.

This brief dip into the McLachlin Court’s identity leads us nicely into our next discussion, the McLachlin Court’s commitment to expanding individual freedoms under section 7 of the Charter.

The Expansion of Protections Under Section 7

During McLachlin’s tenure as Chief Justice, the Supreme Court oversaw a number of significant changes to our law. Given the rise of the internet and technology, the growth of social and environmental awareness, including a heightened recognition of the need for reconciliation, and the maturation of Charter jurisprudence, it is not hard to see why. Change, however, does not necessarily translate to improvement. The real question is whether the change brought forth by the Court has been for the better.

In answering this question, one could write volumes. In this modest post, however, I will focus on what I take to be the most significant contribution of the Supreme Court under McLachlin’s leadership—the expansion of fundamental protections under section 7 of the Charter.

Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Simple enough (not at all though), the Court has interpreted this constitutional protection from the outset as providing protection to individual liberties from state interference for “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law” (Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, 202). In the late 1980s and early 1990s, section 7 was interpreted as imposing mens rea and fair trial requirements that had a transformative impact on many areas of criminal law and procedure (Professor Bruce Ryder). Under the McLachlin Court, however, section 7 grew further to embody a progressive conception of individual autonomy and respect for human dignity that protects persons from state interference with their bodies, their psychological security, and their deeply personal life decisions.

In developing this robust view of individual protections from state interference, three decisions in particular stand out: Canada v PHS Community Services Society, 2011 SCC 44 [Insite], Canada v Bedford, 2013 SCC 72 [Bedford], and Carter—all of which Chief Justice McLachlin played an integral role in writing.

In its decision in Insite, the Supreme Court unanimously held that the federal Minister of Health, in refusing to grant the Insite safe injection site an extension of its exemption from the operation of federal criminal drug laws, violated the life, liberty, and security of the person of Insite’s clients (para 136). More specifically, Chief Justice McLachlin, writing for the Court, held that the Minister’s decision was both arbitrary (as refusing to grant the exemption was in no way connected to the goal of improving public health and safety) and grossly disproportionate in its effects (as denying the services of Insite to its clients would have far more severe consequences than any benefit to public health and safety to be derived from employing a unified position on drug enforcement) (paras 131, 133). Given the location of the Insite clinic—the Downtown Eastside of Vancouver, “one of the most impoverished urban neighbourhoods in Canada” (Margot Young, “Context, Choice, and Rights: PHS Community Services v Canada (Attorney General)” (2011) 44:1 UBC L Rev 221 at 226)—and the clients that frequent it—intravenous drug users and other marginalized individuals, including Aboriginal, homeless, and previously incarcerated individuals (Insite, para 9)—this decision represents a recognition that the Charter is, at its most powerful, a tool that can prevent the state from acting in a way that exacerbates risks to lives and health, particularly against the most disadvantaged in society.

Similarly, in Bedford, the Supreme Court unanimously declared unconstitutional three provisions of the Criminal Code that heightened the risks faced by sex workers in the course of their work. Specifically, the Court held that all three of the impugned sections—sections 210 (to operate or participate in a bawdy-house), 212(1) (to live on the avails of sex work), and 213(1)(c) (to communicate in public for the purpose of sex work)—violated an individual’s right to security of the person as they prevented sex workers from implementing measures to protect themselves (i.e. working out of secure locations, hiring body guards, drivers, receptionists, screening clients, etc.). Building on the Insite decision two years prior, the Supreme Court again demonstrated that the Charter, and specifically section 7, will prevent legislatures from enacting laws that work to create inequality (although we must keep in mind that such laws are still operative in our society, with the Protection of Communities and Exploited Persons Act, the government’s response to Bedford, being a prime example). Further, the decision, authored by McLachlin, was a clear and confident example of the McLachlin Court’s willingness to engage with and reprimand Parliament where necessary.

Most recently, in Carter, the Supreme Court held that a prohibition on physician-assisted suicide was a deprivation of the right to life due to the fact that such a prohibition “had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable” (paras 57-58). Further, the Court held that the prohibition violated a person’s right to liberty and security of the person as it denied them the ability to make a choice deeply related to their sense of dignity and personal integrity (para 68). In coming to these conclusions, the Court made clear that Canadian courts continue to be “in the vanguard of international judicial decision-making” in “areas of intimate personal decision-making” (Philip Girard, “The Top Ten Legal Cases since Canada became a Nation” (Exhibit at Osgoode Hall Law School)). On this point, it must also be highlighted that in 1993, over 20 years prior to the decision in Carter, Justice McLachlin (as she then was) authored a dissenting opinion in Rodriguez v British Columbia (AG), [1993] 3 SCR 519 [Rodriguez], arguing for the Court to strike down the Criminal Code’s prohibition on physician-assisted dying. An opinion that was an early sign of the emergence of McLachlin’s progressive and powerful voice on the Court, her dissent in Rodriguez came full circle in Carter.  The Carter decision thus serves as a shining example of the former Chief Justice’s forward-thinking nature and her commitment to the establishment of robust individual liberties.

Although somewhat narrow in the number of individuals they actually serve to protect from state interference, these decisions illustrate the McLachlin Court’s awareness of, and commitment to, individual freedoms and human dignity and autonomy. In other words, these cases are meaningful well beyond their direct and immediate benefits—they signal a clear sense of respect for those who are marginalized and vulnerable to interference in society. And, although section 7 has not yet been extended so far as to impose positive burdens on the state (See Gosselin v Quebec, 2002 SCC 84), these decisions signal to Parliament (and to government, in general) that laws or actions that infringe on the individual rights of persons in a manner that is arbitrary, overbroad, or grossly disproportionate will not be tolerated in Canadian society.

 

[1] The data used in this post is from the Lexum collection. The author analyzed every decision released between 2000 and 2017 (inclusive). Please note that, as this analysis was done manually, there may be errors. The author is also not an expert in the Supreme Court’s specific methods of categorizing its decisions for its own official statistics. Inconsistencies may therefore be present. If you notice any errors or would like access to the raw data, please contact the author at DevonKapoor2015@osgoode.yorku.ca.

Devon Kapoor

Devon Kapoor

Devon completed his BA (Joint Honours) in English and Philosophy at McGill University. He is now in his third year of the JD/MBA program at Osgoode Hall Law School and the Schulich School of Business. He is developing a broad interest in several substantive areas of law, including criminal, constitutional, and securities law.

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