Retiring chief justice will leave enduring legacy: Hicks
OTTAWA — Canada's retiring top judge says more must be done to ensure the justice system is accessible to everyone in a timely way — and Beverley McLachlin hopes she will continue to play a part in the reform process.
McLachlin steps away from the Supreme Court after 28 years — including almost 18 as chief justice — and more than 2,000 cases on everything from assisted dying to interprovincial trade.
She reflected Friday on the work of the court in the post-Charter of Rights and Freedoms era and her belief that the justice system belongs to the public.
“I hope that I've tried to make it more open and reassure Canadians that the courts are their courts and that we the judges who serve on those courts are all dedicated to providing better justice for Canadians,'' she said during a news conference.
A landmark 2016 ruling from the high court defined time limits for completing criminal trials, but McLachlin says more must be done to address delays and costs that pose barriers.
“I believe that access to justice, being able to use the justice system, is something that every Canadian is entitled to.''
The federal justice minister, attorneys general from across the country and judges are focusing on the problem and making changes, she said. McLachlin is impressed with smaller efforts, such as more readily available information on the legal process and discounted legal services to help people navigate the system.
“There is much being done, and there's much more we can do. And I'm hoping that when I retire I can continue in some way to push this project of access to justice, and making justice more accessible to all women, men and children in Canada.''
At a gala sendoff Thursday night, McLachlin was toasted by former governor general Adrienne Clarkson, former prime minister Brian Mulroney — who appointed her to the high court — and Prime Minister Justin Trudeau. Notably, but perhaps not surprisingly, absent was Stephen Harper, who publicly tangled with the court during his time as prime minister.
In a statement, Trudeau said McLachlin, the eldest of five siblings raised in rural Alberta, remained grounded and down-to-earth despite a meteoric rise through the judiciary.
“She understood that the law had to be meaningful and accessible to Canadians and demonstrated this through judicial decisions written in clear, understandable language.''
McLachlin demurred Friday when asked about her legacy, but said she tried to uphold the law in a responsible, pragmatic way for the people whose lives it touched.
Her impact could be felt for a while yet.
Though McLachlin officially retired Friday, she will have a say on judgments in cases she has heard, as long as they are released by June 15. If any come out after that date, the judgment will note that she had no input into the decision.
McLachlin said she is proud of the work the court has done on First Nations files and in the development of a legal structure into which Indigenous rights can function, as well as her `”mall role'' in the development of jurisprudence under the Charter.
She singled out the federal reference to the court on Quebec secession as one of her more difficult cases.
“It was very challenging because it was at the edge, at that fine line between constitutional law and political matters. We had to be very careful what we said and what we did.''
The justice system has come a long way over the years in recognizing the special needs of people with mental illness who have committed crimes, for instance by diverting them into streams that make medical care available, she said.
“There's an increasing recognition that we have to find other ways to deal with this considerable problem of mental health in the justice system.''
While she wants to continue fostering more universal access to justice, McLachlin seems confident that Canada's highest court is in good hands.
“What have I left undone? No doubt a great deal,'' she said. “There's much left to do out there, but it will be for someone else.''
In an interview with AdvocateDaily.com, Toronto criminal lawyer Christopher Hicks says McLachlin’s legacy will be an enduring one. He points to R. v. Jordan, which established firm timelines for criminal matters to go to trial, as one of the most important decisions the court made during her tenure that will have a lasting impact on the criminal justice system.
“Some cases go on for too long and there’s no reason for it except that they slip through the system’s checks and balances,” he says.
“In Jordan, the court said this can’t be tolerated any longer so it established the guidelines: 18 months in the Ontario Court of Justice and 30 months in the Superior Court. You’ve got to have the trial done by those timelines to keep it fair to the accused and to everybody involved.”
Hicks, a partner with Hicks Adams LLP, says the Ontario attorney general’s office and the courts have been “adamant” about sticking to the timelines as set out in Jordan.
“They see there’s no wiggle room there and they are doing everything they can to conform to them,” he says. “They don’t want to give up prosecutions because they’ve taken too long.”
Hicks says several serious cases that were stayed because of Jordan have been appealed and he expects some of those to go to the Supreme Court of Canada.
He says McLachlin did a “wonderful job” as chief justice and authored many other important decisions.
“She was also able to get consensus from the court with fewer dissents,” he says. “She was a tremendous chief justice.”