McLachlin’s Law: In All Its Complex Majesty
First published in The Supreme Court Law Review, Second Series, Vol.88. Reprinted with permission. (2019)
34 Pages Posted: 1 Oct 2018 Last revised: 16 Feb 2019
Date Written: 2019
No other judge has had as distinguished a career on the Supreme Court of Canada as Beverley McLachin. She was an exemplary Chief Justice, one of Canada’s finest, and is deeply respected as a jurist. Yet she remains an enigma, perplexing us still, in large part because her jurisprudence defied characterization throughout her 28-year tenure on the Court. This article seeks insight into her core commitments – what was sacred to Beverley McLachlin in judging – by drawing on her extra-curial reflections and writings and by sampling from her jurisprudence. The analysis shows that Justice McLachlin’s decision making was driven by an internal dialectic that distilled the law’s “complex majesty” that balanced the rule of law’s legality and empathy’s humanity through a process of studied and disciplined flexibility. In essence, what Justice McLachlin practised was the art of contextualized judging. And what emerged through this process of internal dialectic was less a substantive theory of justice than a manner of decision making that represented its own distinctive, and even singular, conception of justice. Reflecting on a jurisprudence that includes breakthrough decisions and unforgettable moments, the article concludes nonetheless that Justice McLachlin’s legacy consists more truly in her decision making than in the decisions she made.
Keywords: Beverley McLachlin’s legacy, the Charter of Rights and Freedoms, contextualized judging, the rule of law and conscious objectivity
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