Justice Beverley McLachlin, the longest serving chief justice in the history of the Supreme Court of Canada, delivered this year’s McLaughlin College Annual Public Policy Lecture held on Oct. 30.
McLachlin served on the Supreme Court of Canada for some 28 years and, for more than half of those, served as its chief justice. Legal scholars such as Professor Ian Greene and Peter McCormick (Beverley McLachlin: The Legacy of a Supreme Court Chief Justice, 2019) have observed that she left an indelible and remarkable imprint on the jurisprudence of Canada during her years of service. The chief justice of the Supreme Court of Canada ranks third on the Table of Precedence for Canada, behind the governor general of Canada and the prime minister, and above the speaker of the Senate and the speaker of the House of Commons, and is a position of great authority and responsibility in the government of Canada.
The topic for her lecture was “The Role of the Constitutional Court in a Modern Democracy,” a subject that she has unparalleled expertise and experience with. The Supreme Court of Canada is the final court of appeal that decides the most important constitutional law issues confronting Canadian society and sets precedents that must be followed by every court in Canada.
McLachlin began her lecture by reference to the recent landmark constitutional law case of the Supreme Court of the United Kingdom, R (Miller) v The Prime Minister, that limits the royal prerogative power to prorogue Parliament. In a unanimous judgement, the U.K. Supreme Court ruled that the matter was not only justiciable but that Prime Minister Boris Johnston’s advice to Queen Elizabeth II was unlawful. McLachlin noted that the case demonstrates the extent of the authority of the constitutional court in a liberal democracy; that is, to shape it’s governance and, thereby, the very nature of its society.
Turning to Canada, McLachlin identified three functions of any constitutional court within a federal system of government: to decide the “separation of powers” between the federal and provincial governments; to ensure that the powers of governments conform to the constitution; and, since the advent of the Canadian Charter of Rights and Freedoms, to decide on the nature of the rights guarantees contained therein.
Each of these three functional areas of the constitutional court were addressed in detail with reference to some of the leading constitutional judgments during her years on the Supreme Court of Canada and before she arrived in 1989, including:
1998 Reference Re Secession of Quebec – that dealt with the legality of the unilateral succession of Quebec from Canada, in Canadian and international law.
1989 Irwin Toy Ltd. v. Quebec – that decided the meaning of freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms.
1990 Sparrow – that decided the meaning of Aboriginal rights under Section 35 of the 1982 Constitution Act.
1988 Ford v. Quebec – that struck down part of the Charter of the French Language as a violation of the freedom of expression in the Canadian Charter of Rights and Freedoms.
1985 Operation Dismantle – that rejected a Section 7 Canadian Charter of Rights and Freedoms argument that allowing the U.S. Government to test cruise missiles over Canadian territory posed an increased risk of nuclear war and that Canada would be a more likely target as a consequence.
1989 Crown v. Black – that determined an accused’s right to counsel under Section 10 of the Canadian Charter of Rights and Freedoms.
All these leading judgments of the Supreme Court of Canada demonstrate, McLachlin noted, that the constitutional courts have the power to protect the constitution and the “rule of law.” She further noted that the protection of all Indigenous rights and reconciliation were the most satisfying part of her work.
Following her lecture, McLachlin answered questions from a capacity crowd. Professor James C. Simeon, head of McLaughlin College, observed that “From the question and answer session, it was evident that all those present were highly engaged and hung on every word that she said.”
At the conclusion of the formal part of the evening’s program, McLachlin met and had her photo taken with those in attendance, and signed copies of her recent autobiography, Truth be Told, and her novel, Full Disclosure.
“It was a highly successful and rewarding evening for all concerned,” Simeon stated, “and, again, demonstrated the value of the McLaughlin College Annual Public Policy Lecture that brings some of the most outstanding public figures of the day to York University to talk about those things that matter the most to us all in advancing the ‘public good.’”