Beverley McLachlin on her controversies, activism, Supreme Court legacy

(Watch Rosemary Barton's interview with retiring Supreme Court Chief Justice Beverley McLachlin here.)

Beverley McLachlin was instrumental in Canada's most important legal decisions for nearly three decades, helping to shape the laws of the land, the powers of the government and the constitutional rights of every Canadian.

McLachlin retired Friday after 28 years on the Supreme Court, including 17 as chief justice. She sat down for a wide-ranging interview with The National's co-host Rosemary Barton. Here are some of the highlights.

Access 

Q: One of the things you tried to do is [improve] access to the courts. 

A: We have a wonderful justice system. But the problem is that it's often inaccessible for one reason or another to ordinary men and women, ordinary Canadians. And I believe that a justice system has to serve the people, everyone, and not just the rich and the corporations and so on.

So this became a concern, and I decided to talk about it in a speech in Toronto. It was amazing how it resonated. We got so much response, so many people saying this is true, this is my experience, the justice system isn't there for us when we need it, or it costs too much, or I can't get a lawyer, or I don't know where to go.

I realized that this was a major, major thing for Canadians, that we had really touched on something. So we started making efforts to [improve] the situation.

... People are looking at, and have implemented, practical ways to make justice more accessible. For example, in family law we had a long study period on family and civil matters. And now as you go into many of the courts you will find information centres, you will find places where people who are experiencing things like a marriage breakdown can go to get information, and where they might get help from lawyers ... and how they can get through the system. So that's just one of many, many examples of things people are doing.

It's a complex problem. Part of it is procedural change, which has to happen from on-high through governments and courts. Part of it is informational emotional and cultural.

And part of it is just finding ways for people to hook up with what they need. Because the justice system can be bewildering.

Sexual assault laws

Q: Would you agree that there is a problem with judges not understanding or properly applying sexual assault law and jurisprudence, and if so, how do we fix that?

A: I do believe that 99 per cent of the judges are very, very cognizant of the issues involved. And the proof is in that we have thousands of sexual assault trials all the time, and you don't hear about them because they are [decided] without incident.

But occasionally we've had instances where a particular judge has shown that he is influenced by stereotypes and myths of the past.

We've been working for decades to eradicate this, both in parliament and among the judges. We know it's wrong. We know that judges cannot perpetrate these ideas, nor should anyone else.

... The key, I believe, is in early judicial education. What we mean by that is sensitizing judges to the issues that come up in sexual assault trials — how to handle them, how victims and complainants feel, how difficult it is for them to come forward with their story.

And we are working very, very hard to ensure that every judge who goes on the bench and hears this sort of a trial will be totally sensitized and appreciative of all these difficulties.

Indigenous rights 

Q: There was some hope that with you leaving, there might be an Indigenous person named to the court. Why do you think that would matter?

A: It would send a message of inclusiveness, and that's very important. I think that Canadians should be able to see themselves reflected in the judges who are on the bench.

... The other point is that diversity brings different perspectives.

Now, it's hard to pinpoint this, because judges have to understand all sorts of perspectives. That's part of their job, and if they're male they have to understand feminine perspective, we have to try to understand Indigenous perspectives, and we know that Indigenous perspectives can vary enormously because there are so many different peoples.

But all the same, it's important to have as diverse a bench as possible so we can have different perspectives represented.

Q: After the addition of Section 35 of the Constitution there seemed to be a sort of gap when it came to indigenous rights. No government stepped up to fill in some of those blanks. And the court did many times through various decisions. Did you feel that the court was having to define rights that governments were not?

A: Indigenous people started bringing their claims through the courts. I can only assume they felt they weren't getting far with the governments, and so they started bringing their claims for breach of fiduciary duty.

And then they started bringing their claims under Section 35 for fishing rights, and hunting rights, and ritual rights, and land claims. And all of this has been happening through the courts, because the courts were the available forum.

Q: Did you feel like you were making decisions that would empower Indigenous people?

A: Yes, but we were basically, as a court, just trying to interpret the law as it had been laid down in the Constitution's Section 35. As it had been laid down through other doctrines, like fiduciary duties pertaining to Indigenous people.

So there was very little law, and these people came to court and said 'we think we have cases.' And we looked at it and we said you're right.

We tried to articulate that law, articulate those rights that were already embedded in the Constitution and the Royal Proclamation and other things. That was a really wonderful endeavour to be part of it and I enjoyed it very much.

Q: What do you think some of those decisions, the big ones, changed for Indigenous people?

A: There was a basic recognition that we have to continue on together. 

It's a process of reconciliation, and let's face it, we're all in it together. Up to that time, there had been largely — not always, but largely — a kind of turning away from serious consideration of the issues of indigenous people.

And when Indigenous people started coming to the courts and the law started changing, people had to come to grips with it.

Q: In May of 2015 there was a speech where you talked about the cultural genocide on Indigenous people. And there were some people that were critical, not necessarily because of the language but of the fact that you said anything at all. Why did you use that language?

A: I didn't think I was saying anything very remarkable, because everyone agrees that these things happened in history ... so I was a bit surprised by the reaction.

... I spoke about laws that were on the books in the 19th century and the early 20th century that undermined and actually denied Indigenous cultural practices. So the emphasis was on the undermining of culture, the unique culture of different indigenous peoples.

I think we need to understand that we did that in the past, so that we can move on and make sure we don't do it in the future. Things like laws that eradicated the sun dances, and said you couldn't do the potlatch, that took children away from their cultures and homes and put them in residential schools where they were not allowed to speak their language or see their parents.

I mean, this is a cultural deprivation which has led to a lot of problems. Problems that showed themselves in the legal system. And so I think it's important for all of us to understand that that's how it was, how people were.

I wasn't condemning those people, I think everybody acted out of good motives. But we need to understand where we were, and the progress we're making in our journey of reconciliation toward where we hope to be.

Harper controversy

Q: I want to go back to some of your time with the former prime minister, the extraordinary disagreement or dispute with Prime Minister Harper.

A: I had been in New Brunswick the night before, in Moncton giving a speech, and I had to get back to Ottawa for 8 o'clock. So as I recall, I got up, got dressed and at 4:30 a.m. I went down to the desk — and there was the Globe and Mail with the accusations on the front page. 

Q: The accusations that you had behaved improperly?

A: The suggestion they were trying to make was that I had tried to influence against the appointment of a certain justice.

... And so obviously I was shocked, I was astounded, because I knew I hadn't done anything wrong. I spent a rather miserable two-and-a-half hours on the flight figuring out how this could have happened, and what was going on.

When I got back to the office I thought about it, and I said 'I'm not going to get into a fight.' Judges can't get into fights with politicians — we have to just be quiet if we are accused, normally.

But I do believe the public is entitled to the facts. So I sent out a press release said I have done nothing wrong, and these are the facts ... and that was all I ever did. Never gave an interview, never went to the press.

Q: But the impression left with the public was that you were fighting.

A: Yeah, well, as I say, I declined to fight. But I did think the public should know the facts ... I was worried that any such allegation could tarnish the administration of justice, could tarnish the office of chief justice, could tarnish the court.

... What I had done was something that judges and chief justices have been doing for generations. It is a component to running the judiciary — you have to deal with the Minister of Justice and sometimes the Prime Minister on that, but you would never discuss a case.

I am totally respectful, and have always expressed that respect, of the right of the Prime Minister to appoint whomever he wishes.

Activist court

Q: Conservatives believe that you became an activist chief justice, and that the court became activist.

A: When the Charter was adopted in 1982, we changed the role of the judiciary. Judges were the ones who were called upon to decide whether government's laws and actions conformed to the Charter, and that was their duty. And if they said [the laws] didn't, then laws could fall and administrative actions by government could be set aside.

So the judges were thrust into this role, and at the time there was a lot of debate. This was in the '80s and the '90s, and that's when charges of judicial activism reached their height.

And I understand perfectly the concerns. I mean, people had gone from a system of parliamentary supremacy to a constitutional system where Parliament had found itself [required] to respect certain values in the Charter and so on, and judges could determine whether they'd done so.

But the fact is it became the law of the land. It became the Constitution, and the judiciary had no choice but to uphold that law.

We have always tried, and I have always tried, to give great respect to the wishes of Parliament and the legislatures, and our jurisprudence is full of this. And it is only where there is clearly an inconsistency of the basic principles and rights that we say there is an inconsistency — and even then we've modified remedies, we suspend declarations, we suggest guidelines for fixing it up in new legislation.

So I think we obviously have new powers, powers that weren't there before '82. Have we been too activist? I don't think, on the whole, the courts have been. I think they're trying to do their job of upholding the Constitution and upholding the law.

Retirement

Q: What are you most proud of?

A: I'm very proud of the work we've done on indigenous rights. I'm proud of the work we've done on the Charter. I was very proud of the secession reference, which I was a small part of.

I think of the court has done good work, work that's recognized throughout the world.

Q: How do you feel you've changed the Supreme Court?

A: I'm not sure that I would actually claim to have changed it to a great deal, but I've tried to encourage consensus. I've tried to encourage collegiality. I've tried to encourage good decision making.

And I'm sure all the justices share those goals. But I've been part of that.

Q: What will you miss the most?

A: Oh, I'll miss a lot of things, but I'll miss the judging, the ability to grapple with new and difficult issues that are coming down the track.

I'll have to stand there on the sidelines and watch others do it, and that will be something that will be hard.

Q: How do you feel about leaving?

A: I have mixed emotions.

Obviously, I've had a wonderful ride as as a judge and more lately as a chief justice. I've been in this particular court for a long, long time, so I'm going to miss it enormously.

But I also ... know the time has come, and I'm excited about whatever may lie ahead.