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Anti-terrorism, diversity to dominate law in 2010s
"I think it’s obvious that one of the central issues at present
and for the future will be finding the right balance between the need
for security, on the one hand, versus the individual liberties and rights
of people" -chief justice Beverley McLachlin * 7 Jan 2010 Chief Justice Beverley McLachlin, who took over a court 10 years ago
that was under siege from the political right, says the critics who accused
the bench of overstepping its power seem to have gone away because their
anxiety over the Charter of Rights has subsided. McLachlin, who today marks one decade leading the Supreme Court of Canada, told Canwest News Service she expects the most pressing legal issues facing the court in the coming years will be where to draw the line on anti-terrorism initiatives and how to deal with the nation’s growing diversity as minorities challenge “established social order.” In a rare interview in her corner office overlooking the snow-blanketed Ottawa River, McLachlin reflected on a decade in which terrorism erupted into an international preoccupation, the Supreme Court experienced a near turnaround in judges, and vocal court bashers seem to have vanished. “ I don’t know why, but there’s less anxiety perhaps about the Charter of Rights and Freedoms, I think people feel that it is a good thing on the whole, that it is not going to be simply a licence for judges to do simply what they want to do,” said McLachlin. “ I think people regard the Supreme Court of Canada and the justice system with some pride, and they should. I am happy with my impression of how the court is perceived.” McLachlin also acknowledged there may be less fodder for critics because many contentious charter rights were resolved before her time as chief justice and much of the last decade has been devoted to fine tuning. “Those big questions had to be resolved and they were resolved,” she said. “However, there are new questions that continue to come up. I am sometimes a little surprised that we f ind ourselves in fairly new territory from time to time on the charter, but we also f ind ourselves sometimes doing fine tuning or recalibrating decisions as new situations arise and require further consideration.” Nevertheless, there have been dozens of landmark decisions in the last decade, in which the court approved gay marriage, dealt a final blow to the death penalty, upheld Canada’s embattled ban on child pornography, refused to make social hosts legally responsible for their drunk guests, declared there is a charter right to collective bargaining, and rejected a call to elevate health care to a constitutional right. Under the leadership of outspoken charter champion Antonio Lamer in the 1990s, the Supreme Court was regularly accused by right-of-centre politicians and commentators of judicial activism — or overstepping the will of elected legislators. Legal analysts have described the McLachlin court as more measured, shrewd, and media savvy than the court of Lamer, who took on his critics with gusto. McLachlin, as one of the court’s prolific writers, has penned more than her share of rulings, authoring landmark decisions such as the 2007 Charkaoui judgment that upheld Canada’s law permitting the indefinite detention of foreign terror suspects. She, however, struck down a provision that denied suspects the right to know the case against them, forcing the federal government to rewrite its law. The chief justice noted she felt it is tremendously important for judges, when crafting their judgments, to consider how they will play out in the real world. “I think it’s vital because we’re not some academic committee on the top of a mountain speculating on hypotheticals, we have to make decisions that affect the actual lives of men, women, children, corporations, governments,” said McLachlin. While she said she has no inside knowledge of cases that will come before the Supreme Court and other courts in the next few years, she expects judges will continue to weigh in on anti-terrorism measures. “I think it’s obvious that one of the central issues at present and for the future will be finding the right balance between the need for security, on the one hand, versus the individual liberties and rights of people,” she said. She also anticipates the court will be called upon to decide how far the charter will go in recognizing Canadian diversity. “We have of course equality provisions and we have issues going through the courts on issues like polygamy, minority rights, religious rights, tensions between certain religious rights on the one hand and established social order on the other hand,” she said. As a Supreme Court judge for 21 years and chief justice for 10, McLachlin,
66, stands to set a record in 2013 for longest serving top judge, adding
to her distinction as the first woman chief. |