On December 15, 2017 the then Chief Justice of the Supreme Court of Canada Beverley McLachlin retired after 28 years on the Supreme Court and a record 17 years as Chief Justice. Over the span of 28 years, the former Chief Justice has written numerous well-articulated legal decisions. Her retirement offers an opportunity to look back and reflect on some of these decisions that have helped shape Canadian jurisprudence into what it is today.
Retired Chief Justice Beverley McLachlin has had an undeniable impact on the interpretation of the Canadian Constitution, including the Charter of Rights and Freedoms. From Aboriginal rights to equality law, her written decisions help clarify some of the most important rights and freedoms which we hold so close. In Gosselin v Quebec (AG) and Auton (Guardian ad litem of) v British Columbia (AG) the then Chief Justice addressed equality rights in the context of government spending. In Withler v Canada (AG) the Supreme Court eliminated the legal requirement to provide a comparator group when establishing one’s equality rights have been violated. Within the unanimous decision of Canada (AG) v Bedford the former Chief Justice discussed the right to life, liberty and the security of the person in accordance with the principles of fundamental justice. The Chief Justice wrote that the Canadian laws, as they then were, unreasonably deprived sex workers from their right to security of the person.
A few of the most influential Aboriginal rights decisions have been drafted by the former Chief Justice. In Delgamuukw v British Columbia the Supreme Court defined the content of Aboriginal title and was critical in defining the test required to attain it. The former Chief Justice’s dissent in R v Van der Peet has been an influential decision for the Aboriginal rights movement. Within this decisions the former Chief Justice criticizes the majorities application of the Aboriginal rights test and asserted that the current analysis to heavily favoured socially justifiable reasons for infringing a right.
The then Chief Justice also had a significant impact on negligence law through her decisions in Childs v Desmoureaux, Resurfice Corp v Hank, Mustapha v Culligan of Canada Ltd. and Clement v Clement. In Childs v Desmoureaux the Supreme Court confirmed that a social host held a legal duty to their guests. In Mustapha v Culligan of Canada Ltd. the Court confirmed that only damages that are reasonable foreseeable from the Plaintiff’s negligent act is compensable at law. In Clement v Clement, the Supreme Court indicated that the but-for test remains the most important aspect of the causation analysis.
The former Chief Justice has written numerous notable decisions in the area of criminal law. For instance, the decision in R v Seaboyer shifted law in the area of sexual assault law and the rules of evidence. The decision in R v Harrison and R v Wise refined the law against unreasonable search and seizure.
The former Chief Justice’s illustrious career as a judge will remain a defining moment of Canadian jurisprudence. Her decisions will be read in law schools across Canada for decades to come. As the first and only female Chief Justice of the Supreme Court she has created a path for women to attain the most elite position within the legal profession. Justice and fairness will mark Chief Justice McLachlin’s legacy in Canadian law.
Written by Nicholas Baxter, articling student.