Beverley McLachlin

3Hi, nice to be with you.

5Well, I tell people the proper way is just as you would address anybody else, Ms. McLachlin, Beverley, whatever. But the fact is that people who've worked in the profession and so on just find that very difficult sometimes. So if they want to call me Judge, that's fine. As long as they don't call me the Judge or the— it's a broad generic, I guess, the That will always stick with me as long as I live.

7That's fine.

10'76.

14Mhm.

16Mhm.

18Sounds good. You've done your homework.

20Frank, sorry.

22I should have turned off my cell phone. Apologies.

24Well, my mother was born here, but my father was not. Yeah.

26That's right.

28That's correct.

30Yes, well, that's what life does to you if you're changing countries. And, and he, he was actually born in what was then a German part of, of Poland, but now no longer is after the Second World War. So he spoke Polish He, he spoke German. He spoke a little bit of Russian because there was always some influence. And then he had to learn. Then he came here at age 13 and he learned English.

32Yes,

34No.

36I suppose I didn't think about that at the time. I, it was, it was fine because it was, it was good. It was something I thought, always thought, oh wow, wouldn't that be nice to not have to there was a certain stigma that attached to German names after the Second World War, and I grew up with that, so it was an escape. But I, I did to practice in my maiden name because I felt very strongly that I had to be true to that. And discrimination was such at the time, the Law Society took the view that they would not issue me a certificate in my maiden name since I had married at the time I qualified to practice law.

37So I thought, why fight it? At that point I would have been happy to go back to my maiden name, but It was not to be, and I had a lot of other things to worry about as a young person just starting the practice of law in '69 and '70. I thought, well, I'm not going to fight that battle at this point. So I've— for the world knows me as Beverley McLachlin.

39I was talking Alberta, actually.

41Yeah, that's where I grew up and went to law school, and then I practiced there for about 3 and a half years if you include articles. Yeah.

43Yeah, I do still. It was a factor, let's put it that way. I mean, it certainly isn't the only thing. They were looking for a good judge, hopefully. But but there were very few women on the bench in the '60s '70s, very few. And toward the end of the '70s, the Liberal government in Ottawa, really, you know, that was the era of Pierre Elliott Trudeau's era of people talking about the Charter coming. It was the era of people realizing that there were a lot of women and Betty Friedan, all those books, women's rights was on the radar. So, the federal government, John Turner particularly, they decided that they had to get some women on the bench, I think.

44I mean, I wasn't in the boardrooms, but there were pushes. And the Chief Justice of British Columbia, Supreme Court of British Columbia and the County Court at that time, Alan McCachren, was very keen to get some more women on the bench. There was only one, that was Pat Proudfoot. And in the Superior Court, Section 96 Court. So, so he approached me one day at a reception, and he said, have you ever thought about becoming a judge? And I must have looked shocked. I said, no, I have not. I was quite happy teaching law, and I was thinking of going back into doing some practice. And, and and he said, well, I'd like you to think about it.

45So I started to think about it, and I have to say it was with some hesitation. I was only 37. I felt my career was just getting going. I hadn't ever even thought about becoming a judge. Would I be a good judge? And then at that point, the view was, everybody absorbed it, including me, that if you went to the bench, you stayed there. You didn't view this as a transition in life. So it was a big deal for me to decide. To let my name go forward. But it did, and I was appointed to the county court. And as you say, shortly after that, moved up to the Supreme Court. But there was this push to get women on the bench, and they were appointing some others.

46So they were being quite proactive about it.

49Yes, I do. Yes.

51Well, I it was just a gut thing. I, after being— I did vote before I became a judge, obviously, and, and I I've always been, you know, as a young person, I was very interested in governance and politics and so on. But after I became a judge, I felt uncomfortable voting. I say this with a preface. I do not wish in any way to criticize judges who vote. I admire it. That's fine. It's your right as a citizen. And I can see the counterarguments. But it was a personal thing for me. And I was hearing cases very often with either provincial Crown or federal Crown or various laws that— and issues that were of interest to the— to this government or that.

52They were litigants. And I just thought, oh, I just feel more comfortable taking a completely neutral stance and maintaining that in every aspect of my life, my personal life as well. I'm sure had I voted, it would not have led to me being biased, but I just thought, I don't want to do that given my position. And so I didn't. And I must admit, I still haven't. I've been retired almost 5 years and I still haven't voted in an election. And I keep telling myself I should because, you know, we're always telling people get out and vote and I should as well. Maybe I will. Freedom at 80 or something like that. But I didn't while I was a judge.

55No, I mean, I really have always enjoyed commercial law. And It comes as somewhat of a surprise that I wasn't seen writing on so many. I know I did write on commercial law decisions and sometimes in dissent as well. So that may be the fact that, I don't know if this is a reflection of the fact that during my time in latter years at the Supreme Court of Canada, Although I was always anxious to have more commercial law cases heard, the fact was that most of our work was constitutional, criminal, administrative, etc., etc. So we didn't get that many commercial cases. But no, I have to say that surprised me a little. I enjoy commercial law and I'm doing quite a bit of it now because I'm doing excuse me, international and a bit of national arbitration to amuse myself.

56It's very interesting. And I must say, I find it fascinating to— it's almost all commercial, and I find it fascinating to still be involved in some way in a sort of judging. But I think commercial law is very, very important, and I've always enjoyed doing it.

58Oh yeah, well, I remember it being very, very important and occupying a big chunk of my brain and my time at the time, and very, very interesting as well. Obviously, the details are now no longer fresh in my memory, but I do recall that period when we were working on that case.

60Oh, he was wonderful. And—

62Yeah, well, that doesn't mean he wasn't wonderful.

64Well, I just remember I remember the pleadings. I remember Earl. I remember our discussions. I remember that we were very moved with the there was a rogue in that case, and that was the adjuster, right? And and it seemed he had been, as you know from the case, taking an extremely hardline and unreasonable approach with this family who had lost their house to fire and were literally standing in the snow. And then it was a very, very, shall we say, I don't want to use the word cruel, but it was not a sympathetic way to treat someone who had been paying policy. So The result was that the court was, it was one of those cases that Mr.

65Cherniak would've found very, very hard to win because on the facts, the position of the claimants was so sympathetic. And I think cases like that where people have suffered or you, as a judge, you empathize with them. And of course you're taking an objective view, you're looking at all parties. But it brings a very human element to the work that you're doing.

67Yeah.

69I don't really think so, not as any, any really decisive factor. Of course different judges acquire different reputations and so on, but you always look at the case and you look at the facts and you see what happened because The whole point of having appellate review is that even the best judges could have made a mistake, if we can talk about mistakes in this context. And so you have to do the thorough review, and you don't take for granted that any decision is going to be right because a certain person's name is attached to it.

72Well, with respect, I think your statement is somewhat of an overstatement. I know, I know where you're going with that though. And this happened before I got on the Supreme Court. When I was, when the Charter was adopted in '82, I was a judge already, and we were watching to see how the Supreme Court would approach the Charter. And as were law scholars, as were lawyers, the whole legal world, and indeed Canadians more broadly, were watching to see what approach the court would take. And the bets— I didn't do a poll, but a lot of people thought that the court would take a very narrow conservative approach to the Charter, as the Supreme Court had done to the Diefenbaker Bill of Rights.

73And up to that time, the Supreme Court was not viewed as a place where innovation and rights talk was really very welcome. So most people had a very, had very modest expectations and thought that the court would, they were worried, a lot of the people who had worked so hard to get the Charter rights in place were worried that the court would take a very narrow approach. And in fact, the court surprised us all in taking, the Dickson Court, a broad and purposive approach to the rights in saying we have a new document here, we have a new Constitution, and we have to take it seriously, and we are going to adopt as I said, a broad construction of this to achieve its purposes, its intended purposes, and really protect the rights of Canadians.

74And that was new. That was very— that was when the revolution happened. And not that they threw precedent out the door, but there was no precedent. There was nothing except a statutory Bill of Rights and provincial statutory Bill of Rights. So they had to make it up. They had to make up a new jurisprudence, and they decided that they would opt for a new progressive approach, and that set the Charter on its way. I know I remember very clearly when the Motor Vehicle Reference came down, and I, we were all very surprised because even the scholars had said this is going to be a procedural provision. It's not going to guarantee substantive liberty. And in fact, then Justice Lamer wrote for the majority in very clear terms saying it was going to be substantive.

75And so everyone was scrambling to get their heads around this and what is this going to presage for the interpretation of the Charter. And then the cases started coming out in '85, '86, '87, and we knew that the Supreme Court in a, in a, with respect to this was not the motor vehicle reference wasn't just an aberration. They were generally going to approach this in a very purposive way.

80Well, I think that— and I'm on record as saying that when you make these decisions, you have to try to be as aware of the impact of them as you can. And sure, it's an edge case, but you're not just making the decision for that case. And in Rodriguez, in fact, the majority did— was not persuaded that the consequences would— could be contained. And I was persuaded. I wrote a dissent that they could be and that this was a humane and vital right to give people the right to terminate their— assistance in terminating their life if certain conditions were met. So the question is those conditions, and in Rodriguez, consequences, it was all about consequences.

81The trial judge, Alan McCracken, who I mentioned before, had set out a long coda in his reasons where he talked about how we could ensure true consent and all the, at that point you'd have to go to a judge to get a sign-off on this. So consequences, and so when the Supreme Court started hearing these Charter cases, they knew that consequences were very, very important and, oh dear, another phone. Call from 86. Excuse me. Apologies. So consequences were very important. And that's why the court in about '87 or '88, maybe even before, developed a whole new— that was before I got there— had developed a whole new process for interveners. And so the court was inviting different groups with different stakeholders to come in.

82And give their views so that we could have— so that the court could have some sort of idea about what the impact of a certain decision would be. And this is a very, very important part of the Supreme Court process at this point. And I'm not going to get into the debate about where we have gone on this, largely under parliamentary control. Since the court finally ruled in Carter that, that there was a right to assistance. Again, in narrow circumstances, and if you read that decision, you'll see a huge amount of attention paid to consequences.

86Yeah, well, it's a lot in that question, several questions. First of all, I don't think Section 15, my, my, I could be wrong, but my understanding was that it was never viewed as a process right. It was Section 7 that was often viewed as a process right until the court said it would be substantive. But everybody knew that Section 15 would be a substantive right from the very beginning. And that is why the Charter itself delayed the implementation of Section 15 for 3 years to give legislatures Parliament a chance to bring their legislation up to speed substantively so it would comply. So it was intended by the drafters and the adopters of the Charter to be a very— an earth-changing, society-changing right.

87They saw it that way. So this wasn't— you can't say the courts had a choice in it. That was So that's the first point I would make. The second point I would make is you asked, has it had a good effect? I would say absolutely. There have been so many disadvantaged and minority and other groups that were suffering from overt discrimination and discrimination which we call substantive in effect, even though the law on its face might read as though it was according an equal chance to everyone. And we talk about same-sex rights. It— the Section 15 changed that. We talk about women's rights. Section 15 had a big role to play there. People argue about this and that case, but it was— it's an important thing.

88Religious rights and so on. You can go on. This is race race, racial cases. Section 15 and the Equality Doctrine has been extremely important, not only on the judicial but on the legislative side, in ensuring that Canada has a more equal and open society so that people are not shut out. But then you have to question, what are they shut out from? I mean, obviously there are certain abilities that one needs to do a job. If you are a, if you're asked to be a brain surgeon, not everyone has an equal opportunity. And not everyone can say, I'm going to be a brain surgeon, because they will not have the necessary background or abilities.

89I could never be a brain surgeon. I know that. I'm the least alert person in the world, and I would be killing people all the time. So Section 15 is not going to help me become a brain surgeon, I don't think, the way it was conceived. But the purpose of it is to eliminate eliminate these artificial barriers that prevent people from achieving their dreams when they could on their own means or whatever do it. And it has other purposes as well, of course, to protect disabled people, to make the world a more friendly place for them, etc., etc. But as you say, defining the exact limits is a difficult thing. We always have Section 1, And sometimes legislatures more recently have talked about invoking Section 33, but there are limits obviously that can be imposed.

90So that's my answer, a broad and powerful right, but one that has to be interpreted again purposively. What was it intended to do? Let's ask that common sense question when we use it. And the Supreme Court of Canada, I'll say one more thing, made a, the big decision they made on Section 15 was the Andrews decision where they said it's going to be not, it's going to be a substantive approach to equality in this country. That is, we don't just look at the text of the law, But we say, is the person claiming part of a minority group, and has the law hampered their ability to, because of that minority status or because of that disability or because of whatever, to, is the law getting in the way of them achieving what they should have achieved.

91And that's the way it's drafted. You have the right to be protected from laws that will negate your equal rights. Anyway, enough said. It's a difficult right. I think the equality anywhere, the United States, Europe, Canada, is a complex and difficult thing. But is the world a better place because we now are tackling it? Absolutely.

93Well, that's a choice I wouldn't want to make.

95Well, we could have taken— the court could have. It was before my time. A different approach on Section 1, but that's a whole nother discussion and a complex and interesting one. I think that the Charter rights equality is very important, but I think the other, I really, I'm not gonna let myself be boxed into one. You know, I have a strong civil libertarian bent as well, and I think democratic rights, free speech, liberty rights are extremely important. I think they work together. So it's not this one is more important than that. We have to look at them holistically and try and see what the whole purpose of the Charter was about, which was to make a better society, a society that is better for the individuals that are living in it in terms of their opportunities and realization of their various desires, from self, from governance, the kind of democracy we want to live in, right through to individual equality.

97Oh, thank you. If he doesn't give you a big argument, but thank you.

99It's the International Commercial Court. Singapore a few years ago set up an International Commercial Court, which is not an arbitration center, it's a court center, and anyone in the world theoretically can bring their commercial cases there. There's a lot of unmet need for dispute resolution in the world. We live in a global economy. Commerce is a global thing. And the— there are huge international disputes, individuals, corporations, whatever. But these things need to be resolved. And one way is arbitration. Mediation, that kind of thing. But Singapore added a new judicial branch which has the attributes of a court in that you get open judgments, the reasons are given, you can appeal them to their own court of the Commercial Courts Appeal Division.

100And so people who want to have the shall we say, advantages of a court system in this international commercial world can opt to have their cases heard there.

102I have done both, but in the last 3 years, of course, a lot of it has been remote. And, but Sometimes it involves travel, and I expect that will be happening more. But in Singapore's case, the last case I heard, I'm sure that travel was open to everyone, but we just heard it virtually. It's an option that's now much more broadly available, and it works quite well, I believe, especially at the appellate level. I'm still a believer in real-time justice in a courtroom. I think it's the best, certainly for trials and so on. But we are able now to resolve certain issues, legal issues, and even sometimes ones involving evidence where we don't have the option or the— it's not possible to, to have the, the actual trial.

104appeal? It's the principled thing to do, as far as I can work out in my mind. I am— I understand the concern that people have with what has happened in Hong Kong in terms of diminution of rights. I understand that, but I don't think the fact that people are suffering under diminution of rights, it doesn't logically follow that you get rid of the courts. The courts are there to protect the rights. And as, as long as that court is independent, and that is an absolute requirement for me I see no reason to resign because I can be there when those cases come up where people's rights aren't. And if you look at the history of the law, I mean, from Lord Coke's time, you can go back further, but the courts on occasion in our Anglo history, which we have assumed into ours, but in our own Canadian history, the courts have stood up to governments from time to time and said no.

105So that is why I believe as long as the court is independent, and I stress that, and not under the control of any particular administration, then I will continue to sit there. But if that changes, then obviously I would not. It would not be a principled thing to do. From a practical point of view, I feel the court and upholding the court is a strike in favor of the rule of law, which is very threatened in many parts of the world. And we need to support those people in Hong Kong who are advocating for the rule of law. Leaving the court would probably be used by people to say, "See, she doesn't think it's a good court."

106And I don't want to make that statement. And so I'm there as long as I can in principle be there to serve the interests of justice in Hong Kong. And I should add that 2 members of the British Supreme Court resigned, and one in Australia. There are 35 or something, I might have the number wrong, external judges, mostly from Britain, some from Australia. I'm the only one from Canada. And we're all there subject to those 2 or 3. And the 2 that did in London did it under threat of a bill that was going to go to Parliament. So the The external judges, and these are very, very distinguished people from all over the Commonwealth, are convinced that the Hong Kong Court of Appeal is independent, and they're sticking with it, and I am too.

108They have a basic law, but that basic law has been applied to protect human rights.

110it— I believe so, yes. A long time ago. It's— and it's— Israel also has a basic law.

112And we're hearing a lot about the court's role in upholding that. So some nations that haven't got a constitutionally entrenched bill of rights have a basic law. That functions in a similar way. When I, for example, one of the cases I heard in Hong Kong several years ago involved an allegation of enslavement of an immigrant person who had been brought in by a certain family and was all about the Basic Law protections against that kind of thing.

115Well, so far I'm not convinced that artificial intelligence will be able to do the job that judges and lawyers do. I have read a bit about it, and I may be out of date, but there have been experiments and there are people working on this. And they, to draw a very broad line on what the experience has been, it has not been very positive. There are so many indefinables in many legal problems, most legal problems, that designing an algorithm that's going to be able to deal with them in a fair way is, it does not appear to be in our realistic prospects for the next few decades, at least. There have been some interesting things done in the United States at a very basic level, such as sentencing.

116So people have said, okay, sentencing is an area where you have 4 inputs, shall we say, the crime, the antecedents, protection of society, and maybe something else. Anyway, so here we can develop an algorithm that will factor all those things in, and we will feed— and so some states have done this on a partial or experimental basis, and we've been able to see what happens. And they've always done it under the supervision of a judge. So the judge would get the computer's feed out, but the judge would make the final decision. And it has been interesting, but not necessarily, I think, suggesting that we can replace the judge anytime soon. And there are various problems that we would have to be very aware of, such as, and you can find people who've written articles on this, the inputs that the the computer considered had to do, for example, with area of residence.

117So, or sometimes which was correlated with race, which meant that they— there were suggestions that this machine was imposing a sentence on the basis of location or race. Which would be unfair, whereas a human judge can take that into account and kind of shove it off to the side if he sees or she sees that coming. This machine couldn't do that. So I think, A, it's not, I'm not seeing it on our immediate horizon. And B, if and when we do it, we're going to have to be very, very careful. We're finding out that solving legal problems, whether you be a lawyer or a judge, is an extremely sophisticated thing. We train for years in law school.

118To learn how to think like a judge. And it's intuitive in part and so on and so forth. But it's very difficult to get that judgment factor, which is so important, into algorithms. We'll see. I don't think lawyers need to worry for the time being. No.

120Thank you. It's been a great pleasure, and I thank you for inviting me.