How a dying wish from Beverley McLachlin's husband helped her make a life-altering decision

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Originally published on Sept. 25, 2019.

Beverley McLachlin, the first female chief justice of the Supreme Court of Canada, has weighed many difficult decisions throughout her career, including on assisted suicide, same-sex marriage and prostitution. 

But it's possible that she never would have sat in that seat if her first husband, Rory McLachlin, hadn't helped her make another difficult decision.

McLachlin just published a memoir about her life and her time sitting on the country's top court, titled Truth Be Told: My Journey Through Life and the Law.

She spoke to The Current's interim host Laura Lynch about her extraordinary career and about that choice that Rory, when he was near death from a long illness, helped her make.  

Here's part of their conversation.

[In 1988,] Prime Minister Brian Mulroney called and asked you to be the next chief justice of the Supreme Court of B.C. ... and you turned him down. Why? 

It was a very difficult time for me because my husband was dying. I had a young child. I was quite happy on the [B.C.] Court of Appeal, and being chief justice of a trial court in a busy province is a very big job and it requires very long hours.

I thought about the fact that my husband would be passing, I thought about the fact that I had an 11-year-old son who needed some care, that there'd been huge changes in our lives, and it just didn't seem the right time for me.

And so at first I said no. But Brian Mulroney was extremely persuasive. He kept calling. Every day for a while. He was amazing. I'd hear his plummy voice on the other end of the line — "And how is your husband today?" And we'd discuss that.

And finally my husband was very ill. But sometimes he wasn't too aware, because of the medications he was on. But I went into his room, and he said, "Who's been calling?" And I told him, "That was the prime minister," and he must have been, at some level, very surprised. 

He said, "What does he want?" 

And I said, "He wants me to be chief justice of the trial division of the Supreme Court [of B.C.]" And I told him that I couldn't do it at this time. 

And Rory said, "You should do it." And that was all he could manage. 

So then I changed my mind. I thought, this is a man who loves me, who knows me better than anybody else, and who has always been right about my career decisions and helped me make them. And at that point I thought, I cannot go against him now. 

So when the prime minister phoned the next day … I said I would do it.

But then it was only seven months into your appointment to the Supreme Court [of B.C.] when [Mulroney] called again … he was asking you what this time?

Well, he wanted me to go on the Supreme Court of Canada. And that was even bigger. 

Now, my husband Rory ironically had — and I always thought that this was madness —  but he had always said, "You're going to end up on the Supreme Court of Canada." And he had all these plans about how we'd move to Ottawa and the life we would have there. 

And I would laugh and just say, "That's not possible. It's not right. It just won't happen."

And then there there I was seven, eight months after his death, and I was being asked to do the very thing that he had predicted. So I really again, for the same reasons I described earlier, couldn't say no.

I want to talk to you about [the legal case of] Sue Rodriguez, a woman from Vancouver Island, living with ALS and seeking an assisted suicide, which was illegal at that time. You were wrestling with something personal when it came time to sit on that case. 

I had just been through the illness and final times of my husband Rory, and he was suffering very badly toward the end in it. 

And at one point he told me he wanted to take his life, but he wanted me to help him. And I had been unable to do that.

He asked you to inject him with morphine.

Well, not an injection, but yeah. And I just — whether lack of courage or whatever — I could not bring myself to do it. 

And fortunately he passed very soon thereafter in any event, but I saw the suffering at the end, and I saw the desire to die with dignity when you still had a measure of control over your capacities and your life. And I'd lived through that. 

So I understood both sides of that issue. And how difficult it was. But I was wondering in my own mind whether I was a bit close to it.

I knew as a judge I could always look at something impartially. But was I too close to it because I'd had this experience? 

And I talked to my chief Tony Lamer about it, and he said no. And he was right. I mean I've always known and always believed that judges, we want a diverse bench. We want people with different experiences, so that they can relate to the problems of the people before them. And I felt, yes, I can sit on this case. I won't be biased. I can listen to the evidence. I can look at the law, even though I had my personal encounter with it. I can look at this objectively. 

And so I did sit on the case, and I wrote what was the main dissenting judgment on it, as the majority — five to four, it was close, as you know — at that time in the Rodriguez case upheld the ban on assisting suicide. 

And as we know Rodriguez later did die with the assistance of a doctor who is to this day unnamed two decades later. The court took it up again and ruled that criminalizing assisted suicide violated the Charter [of Rights and Freedoms]. Tell me about that moment for you. 

That was near the end of my time on the court, and it was the [Kay] Carter case. And of course there was a lot more evidence by then that it could be dealt with in a moral and accountable way, that would allow people genuinely seeking it to end their lives with dignity.

Written by Allie Jaynes. Interview produced by Jessica Linzey.