McLachlin memoir a great read but needs more on SCC decision making | Heather MacIvor
Tuesday, October 01, 2019 @ 9:23 AM | By Heather MacIvor
The personal story in the book is honest and compelling. The account of McLachlin’s legal career — without which her “journey through life” would be of little public interest — is more opaque and therefore less engaging. This may be inevitable, given the constraints imposed on judges. But as a mildly obsessive Supreme Court watcher, I wish that she had said more about her “journey through the law.”
The memoir is a great read, as anyone familiar with McLachlin’s writing would expect. The voice in the book is recognizably hers: warm, humorous, scrupulously truthful and utterly discreet about the court and its work. The narrative arc is well known — the girl from Pincher Creek, Alta., who scaled the heights of the Canadian establishment — but there are surprising revelations about her childhood and her struggles with depression as a young woman. McLachlin’s account of her first husband’s death, when their son was very young, is deeply moving.
McLachlin presents herself as a conscientious, temperamentally cautious person. In her younger days, she needed encouragement from the men in her life to take on new challenges. These characteristics, along with her exceptional discipline and intellect, help to explain why so many such challenges have come her way.
Before she was Canada’s first female chief justice, she was the first woman on the B.C. Court of Appeal and the first woman to lead the Supreme Court in that province. Becoming the first woman in an elected position demands exceptional ambition and a high tolerance for risk. A Margaret Thatcher can, and perhaps must, leave men feeling slightly threatened. Female “firsts” in appointed positions generally have different personal qualities: their composure and discretion reassure the men who appoint them and then smooth the way for the women who follow.
In this light, McLachlin’s anecdotes about former prime ministers are particularly interesting. Brian Mulroney, who appointed her to the Supreme Court of Canada in 1989, comes off very well. Stephen Harper does not. By the time Harper moved into 24 Sussex, McLachlin had grown confident in her strength and authority. When he publicly (and baselessly) accused her of improper interference in the appointment of a Quebec justice, she stood up for herself and her institution. Harper wound up damaging his own reputation, while the chief justice emerged unscathed.
The book may disappoint anyone hoping to peer inside the black box of Supreme Court decision making. There are vignettes about important cases, but few details about her own work as a judge. Instead of walking us through the process of weighing arguments and deciding cases, McLachlin tells us that she listened really hard and tried to treat everyone fairly — hardly breaking news. Even allowing for judicial confidentiality, I think it would have been useful and appropriate for her to delve more deeply into certain cases had she been willing to do so. (A better book about the nuts and bolts of judging is Robert Sharpe’s Good Judgment: Making Judicial Decisions.)
Without stepping on toes or revealing personal exchanges better left inside the judges’ conference room, McLachlin could also have told us more about the job of chief justice. She paints an eye-opening picture of dissension on the Antonio Lamer court, but says little about the day-to-day mechanics of leading the institution.
The book is completely silent on the process of granting leave to appeal, which is at least as important to the work of the court as the cases that are actually heard and decided. Leave applications are assessed by three-judge panels called corams. How are judges assigned to particular corams? What happens when a coram wishes to grant leave but the other six justices do not (or vice versa)? Why are some leave applications granted and others dismissed? The former chief doesn’t say.
McLachlin tells us that she wanted to help each judge to do his or her best work, and to “achieve the maximum consensus possible.” But she says little about the concrete steps she took to foster collegiality on the court. These details are the stuff of law-making, not mere personal gossip; sharing them would have been helpful to scholars and advocates.
Don’t expect a follow-up book to fill these gaps. McLachlin says she’ll probably write a second mystery novel instead. (She wrote her first, Full Disclosure, while she was still chief justice.) Personally, I’d rather read the self-published cookbook, Keepers, that she wrote for her son and later shared with her friends and clerks. In saying this, I’m not relegating McLachlin to the “Women’s Page” where she worked as a summer student at the Edmonton Journal. Lots of men write about cooking, while books about murder trials are disproportionately read by women. It’s just that Keepers sounds like a terrific cookbook. And “the story of my life through food,” as she calls it, seems certain to reveal more about Beverley McLachlin than her journey through the law.
Heather MacIvor is a content development associate at LexisNexis Canada and a former associate professor of political science.
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