McLachlin
Continued From Page 1
will keep our plate full in the
next few years.”
Post-9/11, balancing security
and civil liberties has preoccu-
pied both courts and govern-
ments, with the Supreme Court
mandating several major revi-
sions to Canada’s controversial
security certificate regime.
In a major speech last
September entitled “The
Challenge of Fighting Terrorism
While Maintaining our Civil
Liberties”, Chief Justice
McLachlin warned that successful anti-terrorism measures
must not only preserve
Canadians’ safety, but their fundamental values and the rule of
law as well. Her remarks were
applauded by some commentators, but others accused her of
overstepping her role and treading on the government’s turf.
“I wasn’t telling the govern-
ment what to do, and I would
never do that,” Chief Justice
McLachlin explains. “What I
was saying was that in our work
as judges this is what we have to
look at. We have to look at rights
on the one hand. We have to
look at security on the other. We
have to maintain the balance.”
She says she spoke on that
theme, near the 8th anniversary
of 9/11, because “I think it’s very
important for any legal system,
any country, any democracy, to
get the balance right between
personal rights and freedoms
on the one hand, and public
security concerns on the other.
This is very delicate work. It’s
important work. It’s an area
where we need balanced deci-
sion-making, and I think it’s
important for the public to real-
ize that while security concerns
are very important and must be
considered, there is also some-
thing on the other side of the
balance, which is rights. And I
care—as I think most lawyers
and jurists would care—very
deeply that we maintain the
correct balance, so this is why I
refer to it, so that it counters
what may seem sometimes to be
the dominant ‘fear’ message.”
The chief justice declined
comment on Public Safety
Minister Peter Van Loan’s state-
ment late last year that the
Harper government is consid-
ering whether the security cer-
tificate regime even remains
viable in the wake of recent
court rulings.
“That’s the government’s job,
I have no comment,” she
observes.
Reflecting on the past decade
in her walnut-paneled cham-
bers with panoramic views of
the Ottawa River and Parliament
Hill, Chief Justice McLachlin
emphasizes that “the cases”
remain her chief focus and big-
gest challenge, notwithstanding
her extensive administrative,
representational and other
responsibilities as chief justice.
the first (and only) such hear-
ing, pioneered by the Harper
government, “was very respect-
fully done.”
She notes that the judge,
Justice Marshall Rothstein, “is
on record saying that was a pos-
itive thing, and I think it was.”
But she adds “it’s clear that if
this is to go forward it has to be
done in a non-partisan way, I
think, that does not skew the
process and make it more polit-
ical. What we want, surely, for
CRISTIN SCHMITZ FOR THE LAWYERS WEEKLY
Supreme Court of Canada Chief Justice Beverley McLachlin in her Ottawa
office on Jan. 5.
Thus 19 percent of the Lamer
Court’s unanimous judgments
had one or more concurring
opinions, as compared to 13
percent for the McLachlin
Court—a 32-percent drop, the
data reveal.
The chief justice says the
Supreme Court remains com-
mitted to achieving “the great-
est degree of agreement that’s
possible, having due regard for
the importance of vigorous dis-
sents and concurring opinions,
and the liberty and responsibil-
ity of each of the judges to
express their individual opin-
ion and be satisfied with the
result.”
Asked to identify her per-
sonal high points, Chief Justice
McLachlin responds that the
Supreme Court appointments
made by both the Liberal and
Conservative governments
(seven judges appointed under
her watch) were enormously
gratifying. “I have been blessed
with a wonderful court,” she
says. “A very collegial group of
people. All very hardworking.
All very intelligent and dedi-
cated, and they have made the
job very easy for me.”
Although she previously
expressed strong reservations
about public vetting for
Supreme Court candidates, the
chief justices acknowledges that
“
We are very fortunate
in Canada to have had
appointments to the
Supreme Court, I
believe, on merit
rather than adherence
to a particular political
point of view,
and I’d like to see
that continue.
the Supreme Court of Canada
or any court, is the best quali-
fied candidate and we are very
fortunate in Canada to have had
appointments to the Supreme
Court, I believe, on merit rather
than adherence to a particular
political point of view, and I’d
like to see that continue.”
She emphasizes “it is not my
job to decide how to appoint
judges to the Supreme Court.
The Prime Minister has that
responsibility... so I would defer
to his opinion as to how he
should go about appointing.”
It was under Chief Justice
McLachlin’s chairmanship of
the Canadian Judicial Council
(CJC), however, that the coun-
try’s 39 federal chief justices
publicly denounced the Harper
government’s 2006 decision to
give its appointees a majority—
and eliminate the vote for the
judicial chairs—on the Canada-
wide non-partisan vetting com-
mittees for federal judgeships,
without prior notice to, or con-
sultation with, the judiciary.
