Chief Justice Beverley McLachlin #
Few figures in the pantheon of the Canadian judges’ trade union have a more formidable reputation than Beverley McLauchlin - brilliance at the law, steadfast vocal adherence to legal values, - perhaps not quite so keen on Justice, rising to dizzying heights in the service of the nation.
My first introduction to former Supreme Court of Canada Chief Justice Beverley McLachlin were her comments at the Canadian Bar Association (CBA) annual meeting in Saskatoon in Aug 18, 2013. The meeting claimed the most pressing challenge facing the administration of justice in this country was ensuring that Canadians are able to access the system, calling for more federal funding for civil legal aid; not any internal issues of rogue Judges.
Astutely acknowledging the pain associated with legal procedures, McLachlin, misdiagnoses its causes, indifferently deflecting the blame to a lack of public funding, rather than to poor judicial processes and arbitrary decision making.
Later, I found several puff interviews posted on the CBC website. It’s amazing what the fear of losing funding can do to tame a gelded public broadcaster. As a Judge she came across as personable, warm and intelligent.
I followed her career with personal interest from then.
After lodging a deeply disturbing complaint to the CJC. all I received in March 2015, was a short letter to the Judge concerned, thanking her profusely for her letters defending her unsubstantiated determinations.
Despite the fact that:
“The Canadian Judicial Council is mandated to review “any complaint or allegation” against a superior court judge and respond to all complainants.”
I have never received a meaningful response to my complaint. I do feel aggrieved. The CJC defiantly flicks the bird at our parliamentary representatives. Evil thrives in silence.
I recall sending Chief Justice Beverley McLachlin, many emails respectfully pleading with her for a response. I am just so happy now, I didn’t hold my breath!
Most liberal countries resemble an oligarchy, rather than a democracy. In an illusory democracy, our protests fall on deaf ears. Because of its elevated status, obvious failures of the judiciary are not widely acknowledged or corrected.
My most difficult quandary is to determine which of Shakespeare’s tragic heroes McLachlin resembles – Macbeth or Julius Caesar. All three begin strongly with illustrous, stellar promise, but succumb to an insatiable lust for power and dominance.
As Abraham Lincoln said:
“If you want to test someone’s character; give them power.”
I believe democracy fails, when authorities fail that character test. Democracy’s foundational values assume we are all equal and that it favors the many instead of the few.
Correspondence to Beverley McLachlin #
An abridged version:
November, 14th 2017 The Honourable Beverly McLachlin
With due respect, I feel my submissions to the CJC have all been treated with callous disregard.
As a result, my faith in the Canadian Justice system is being severely tested
High handed decision making ultimately diminishes our faith, confidence and trust in officialdom, undermining the very credibility, authority and legitimacy of the entire system by a denial of mutual respect.
Other cases have also caused me deep concern about the independence and integrity of Manitoba’s Queen’s Bench.
The Hoffman Heinrichs was case adjudicated by Justice Greenberg in 2012. It appears to have been determined by an ulterior non-factual agenda based on mystical subjective and summary conclusions. Reasons for decisions should be evidenced, including indicating where they are based on questionable inferential judgments.
Not only did the six day court case find against all the solid evidence, the subsequent Appeal compounded the miscarriage of justice with Ozymandian claims based on four factually unfounded premises. That is quite an achievement!
To appropriate Oscar Wilde, to get one finding wrong may be unfortunate, two - carless, three – negligent, but all four appears perverse.
Yet all attempts to have these decisions held to account failed. The Canadian Judicial Council displays its Kafkaesque power by simply ignoring my inherent rights as a Canadian citizen and taxpayer to a meaningful response.
Norman Sabourin’s most practiced skill appears to be an alacrity in closing files.
File: 14-0393 does need further attention, lest it prove damaging to your otherwise exemplary legacy.
It would be a shame for Beverly McLachlin to have to suffer with Macbeth’s;
my way of life
Is fall’n into the sear, the yellow leaf;
And that which should accompany old age,
As honour, love, obedience, troops of friends,
I must not look to have; but, in their stead,
Curses, not loud but deep, mouth-honour,..
Before you retire could you please reconsider re-opening File: 14-0393
I would appreciate a personal response with cogent reasons if not.
Charles Klassen 885/22 Jane Bell Lane, Melbourne, Vic. 3000 Australia
The Honourable Prime Minister Justin Trudeau
The Honourable Jody Wilson -Raybould
The Honourable Justice Minister Heather Stefanson
One could expect the courtesy of a reply - but only if one were politically naive. As a serial plaintiff of authorities who I believe are derelict in their public duty, in most cases, I do receive courteous, meaningful replies.
New appointees, inheriting cumulative unresolved problems, must actively undo harms done by their predessesors. In this case, the former Chief Justice failed to uphold the law, legislated by parliament. In my opinion, this is extreme negligence, left for someone else to deal with.
All government authorities are charged with the collective responsibility of maintaining the integrity, credibility and authority of the Justice System.
I wonder how a Judicial system can have strayed so far from its original values and purpose.
We need to reclaim our inherent, inalienable, and inviolable right to an equitable and honourable court system conducted with procedural fairness to regain the trust of the people.
The modern idea of a national conscience is tied to our self - image. Canada reigns supreme in many areas, however this image is fragile and in danger by any and all self-serving institutions who value their own interests above that of the public interest. Each nation faces an urgent need for the government of the day to demonstrate the will and spine to corral and rein in its irresponsible bureaucrats. Tyranny lurks just under the veneer of decency.
As Jeannie Suk Gersen writes;
“rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time."
There appears a phenomenon that some Judges have become so removed from their formative roots that they are wholly innocent of any knowledge of what Justice is all about.
Do Judicial officials have to abide by the laws of parliament? In Canada, obviously not.
Legally speaking, requiring public servants to comply with statutary laws, sounds like a fairly modest exercise of that authority.
Beverley McLachlin’s failure to respond represents just one more instance of abject systemic failures of accountability. It’s a stark illustration of how power works in Canada. All attempts, through at least five Ministers of Justice, the Premier and the Prime Minister, failed to hold anyone to account.
Human rights for every individual, is a nuisance to those in power.
John le Carré writes,
“Secrecy keeps mistakes secret, secrecy is a disease. It causes a hardening of the arteries of the mind.”
Self-awareness in short supply when Judges defy Parliament’s statutory mandates with utter impunity.
McLachlin appears to embody in stark and indefensible terms, incremental unentitled privilege of unconsciously power-hungry people in high office. True, sapient, leadership is about earning respect; not subjectively and arbitrarily wielding unchecked authority. Maintaining public confidence through judicial integrity is the highest order of the state.
Powerful and sensitive weapons need to be handled with extreme care if they are not to harm the user as well as the intended victim. Judicial prerogatives are powerful and sensitive weapons.
In any democratic system, the courts must always be the trusted ultimate arbiters, which is why they hold such an eminent position in society. Once they betray that trust, they shred their own authority, respect and legitimacy.
Trust detriment, through poor decision making, reflects organisational cultures that do not focus on public interests. Such cultures promote short-term, small time power assertions, over longer-term public faith. Senior leaders, lacking willingness to tackle the cultural and systemic problems, undermine public faith, contributing to a lack of public confidence and trust in the entire system.
This represents a systemic, co-ordinated evasion of accountability. We need to be aware of creeping authoritarianism, to ensure democratic freedoms apply to everyone. If they don’t, they’ll soon apply to no one.
How do we force our leaders to lead and shoulder the responsibility that comes with high office?
No wonder Transparency International continues to downgrade Canada’s position on its global index to highlight the need for countries to improve checks and balances through strong integrity institutions and to uphold people’s rights to hold those in power to account.
Dean Rostow’s conception of the judge’s role. The law,
“is the central institution of a changing society”; “the proponent and protector of values which are premises, goals, needs, and ambitions of our culture, as they have been expressed in our living constitution.”
However, in order for the courts to be respected, they are instituted to protect us from dangerous people for the common good and to resolve family disputes fairly and equitably to avoid future strife. In this they appear to be manifestly and demonstrably failing. Brendan Behan claimed: “There is no situation so bad, the intervention of the law cannot make it worse”
Prolonged disasters occur in authoritarian systems that lack institutional capacities to self-correct.
In a free society any person is entitled to criticise the conduct of the courts or of a judge. The courts cannot be and are not immune from criticism which may extend to robust observations of a particular decision or how it was determined.
Linda Greenhouse of the New York Review questions how should we think about the Court today—its extraordinary power, the agenda of its new conservative supermajority, its place in a democracy suddenly turned fragile?
Canada previously enjoyed a high reputational jurisdictional status, due in part, to the illustrious career of Brian Dickson who recognised judicial limits.
Dickson’s essence was his sense of limits and equilibrium; McLachlin’s was the absence of measure and rejection of restraint.
However, wrong doing by authorities must be called out for what they are, a contempt of democracy. All Public Servants are there to serve the public; not flaunt their awesome bulwark power.
McLachlin could listen to 17th century British historian, Thomas Fuller, whose commentary ‘Be ye ever so high, the law is above you’
Junot Diaz noted: “Eventually the past finds you. As for so many in positions of power, the moment to reckon with the consequences of past behaviour eventually arrives”.
Consider the legacy of Beverley McLachlin. It is my considered view that under her watch, a sclerotic culture, emptied of its essential identity, its central idea, its core purpose, slowly evolved, perhaps unintentionally. Her motto of “Conscious Objectivity” morphed into a sacred creed of a unanimous front of arbitrary, subjective and collegial decision making. It ushered in a paradigm shift detrimental to society. The concentrated power invested in their decision making, spells hubris, fomenting skewed judgments.
The greatest damage Beverley McLachlin’s legacy perpetrated, secured intellectual autonomy for Judges. This attempt to legitimise capricious judgments become increasingly justified by personal subjective interpretations, eroding respect for all judges.
Perhaps not all the blame for Canada’s current crises of disrespect of authorities can be apportioned to Beverley McLachlin, but her attack on the high court of Parliament led a judicial coup d’etat” (against democracy – the power of the people).
McLachlin opened the sluice gates of evidentiary mismanagement, licencing Judges to apply the law as they see fit, guided by their soloistic views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter. The result was still “the law, eternal, majestic.” (1)
As Schopenhauer puts it —
“every generation mistakes the limits of its own field of vision for the limits of the world”.
But what McLachlin fails to see is that she merely took us back to times when Judges were fully entitled to rely on subjective inferences with judicial prerogatives of arbitrary decision-making. The problem is that the general population expects rational, logical processes, based on palpable, rigorously tested, evidence.
Leaders who suffer from ADD - attention deprivation disorder, have good reason to attempt to justify their legacies, considering the amount of compromises they make to gain and maintain power. McLachlin may be intellectually brilliant but appears completely self-regarding. Some attempt to curate their baneful reputations by writing books or opinion pieces for the media. It appears a lot of effort is being expended on polishing a burnished image.
Her media appearances can be seen as pieces of hypocritical peacockery, a visible demonstration of an inability to distinguish between narcissistic ramblings and authentic memoir.
Paul Keating contends: “Anyone who’s any good never writes about themselves."
Our capacity for self-deception can be revealed by glamourized memoirs. Joan Didion claims we can have difficulty distinguishing between what happened and what merely might have happened.
Even Supreme Court Judges can take themselves a bit too seriously.
Unfortunately contamination from her radioactive term spread far and wide to lower ranks, adversely affecting her attempts to secure her legacy.
Increased public disrepect of all officials is obvious in various protests, attacks on politicians of all political persuasion, the police and even judges. Rectification, can only happen with restored humility and integrity.
Unchecked self-aggrandizement can lead to the point of reckless irresponsibility.
For The Toronto Globe and Mail, recently to risk its credibility and reputation, featuring a condescending, smug complacent opinion piece from the former Chief Justice of Canada, expressing her negative opinion of the protestors, appears contemptuous of public expression, further endangering the chance of objective court cases.
But McLachlin has her cheer leaders from Canada’s “Deep State”; provincial power brokers such as “the Laurentian elite”, the well-connected upper-middle classes from Toronto up the St Lawrence River to Montreal and Quebec, who beneath the outward appearance of legitimate government and accountable officials, often lurk hidden agendas, institutions seeking to seize control of the nation for their own ends. Unfettered by legal norms and unworried by public opinion, they answer to no one.
John Ralston Saul described her as “the most beautiful disguise for a steel trap mind that he’d ever seen."
Could I respectfully suggest that during her stouches with Harper, that steel trap mind snapped shut, and no one has be able to prise it open since?
Adrienne Clarkson reveals that she is the only Chief Justice who knows how to deliver a calf in Pincher Creek - impressive, but hardly the attributes required of a Chief Justice to keep a phalanx of precious prickly judges, protective of their liberal discretionary privilege in line. Bias, perceptions of bias, deviant judges veering from orthodox legal method, ignoring the fundamental, inherent guiding principles in all judicial arbitrating; public office demands public trust for the public good. Just because McLachlin was a brilliant lawyer and Judge, was she an effective Chief Justice?
A measure is surely the mushrooming crowd funded organisations advocating for justice.
For the self funded Innocence Canada to expose more than ninety wrongful convictions under McLachlin’s watch, fails to impress. It remains ineluctable evidence of judicial failure. It appears an act that speaks, at best, of catastrophic negligence. How many more perverse court cases were ignored to the detriment of Canada’s image?
The time honoured phrase that “Justice should be not only be done but seen to be done” needs constant repetition to remind Judges to discharge their duty to the community by fair and honourable means.
The CJC has a primary and fundamental duty to the profession and ethical responsibility to the community, to foster our respect for justice.
Any court’s legal adventurism imposes horrendous costs on the country, not just by eroding trust, but people deciding to engage in covert vigilantism. Some decisions are, to use a nonlegal term, simply nuts.
Dyson Heydon acknowledges the threat of “the enemy within”. Judges who advocate or choose the course of concealment rather than revelation constitute the most insidious of threats to judicial independence,
“As the world we are in becomes more attractive, the less need is there for contemplating the possibility of some other more perfect world, and the less adherence there is to a strict morality; they merely wear judicial purism as a mask.”.
It remains my considered contention that under McLachlin’s rule, revealing patterns, visible only in the long view, resulted in serious damage to the public’s perception of our justice system. Her failure to curb discretionary abuse of evidence and arbitrary decision making were gravely unorthodox, concerning impartiality. It marked a clear deviation from former Chief Justice Brian Dickson’s creed of following the rule of the law of statutes.
In not responding to complaints, clearly not all humans were, in MacLachlin’s view, entitled to basic rights. Some are more equal than others.
Judicial incompetence is more often a product of personality characteristics than of intellectual shortcomings. A test of character is to give someone POWER. This must, as they say in court, go to character - or lack thereof. The American Supreme Court is presently engaged in flexing its muscle, simply to demonstrate no one can stop them.
The authoritarian structure of the judicial bubble culture makes it prone to particular types of personality characteristics; a need for collegial approval, being deaf to unwelcome information, an inclination to internal codes of acceptable behaviour, an insatiable desire for peer admiration, an egomaniacal fixation on power, with its equally devouring urge for unaccountable power and positions of dominance through legalistic chicanery and delusional, narcissistic, charlatanism.
You could say much the same for most professions where the great danger to democracy in the 21st century, is the work of men and women who have no sense of shame, decency or public duty. The higher-ups rarely checked judicial malpractice. Instead, over and again, they gave it the full force of law — sustaining more injustice still.
As the American Supreme Court repeatedly shows, some Judges are anti-democratic. Most of its decisions are appropriately cringe-worthy indications of a system long tainted by ideological, self-protective, pack, dynamics.
Public servants fail us when they shamelessly shrug off their vowed oaths of office. The good guys must stand up to the baddies to protect the reputation of the entire profession. In this, I believe McLachlin spectacularly failed the citizens of Canada. But then we are increasingly living in an “age of impunity”. Without deterring consequences, we can not expect to rebuild respect for what should be our most prestigious institution.
Why are Canadians so apathetic about the denial of Justice to vulnerable people due to institutional failings? Why are our politicians so unambitious? Why does true Justice have to be self-funded?
The growing public awareness of declining judicial standards, leaves a deepening stain on Canada’s image around the world.
Margaret Atwood is conscious of the infinite slipperiness of historical truth, the flawed and partial and frequently misleading nature of what the world calls “evidence.” Atwood advocates that all of us have a voice to be used to call out injustices.
Just because something is, doesn’t mean it should always be.
What’s indefensible is a political class that believes nothing better is possible — a class that benefits from enmity without realizing that the damage from it is corrosive, and possibly irreversible. Michael Ignatieff, a former leader of the Liberal Party of Canada.
Has Canada given up living up to its ideals?
We need leaders willing to act decisively with decency and integrity — and in the absence of entitlement.
Clarkson further contends that McLachlin is known to everyone in Pincer Creek, indicating she is one of us.
She may have been, but as Brutus so ably points out regarding Caesar:
The abuse of greatness is, when it disjoins
Remorse from power:
………………….But ‘tis a common proof,
That lowliness is young ambition’s ladder,
Whereto the climber-upward turns his face;
But when he once attains the upmost round.
He then unto the ladder turns his back,
Looks in the clouds, scorning the base degrees
By which he did ascend.
Perhaps more apt is the sentiment echoed by Isabella in Measure for Measure:
‘Oh it is excellent
To have a giant’s strength, but it is tyrannous
To use it like a giant.’
A more prosaic version goes: “The working class can kiss my ass, I’ve got a government job at last.”
Mark Twain too, felt that no one was too grand to be satirized.
“Irreverence, is the champion of liberty and its only sure defence.” Even if this led to the newspapers laughing “one good king to death,” it was a small price to pay if they also “laugh a thousand cruel and infamous shams and superstitions into the grave.”
That’s what insatiable power can do to us; make us hapless pawns, manipulated by egomaniacal narcissistic seduction; a primordial, parasitic power some find difficult to resist. All institutions gravitate to dystrophy, without strong moral leadership.
Shakespeare obviously suffered an obsessive compulsive condition as most of his plays are fixated on order, subverted by the folly of pompous pretentions of vaunted powermongers. Without the benefit of modern sedation, he just couldn’t stop ranting.
Hamlet too, rails against; “The oppressor’s wrong, the proud man’s contumely, the law’s delay, The insolence of office and the spurns That patient merit of the unworthy takes, …
We, underlings, are dispensable and just expected to patiently and fawningly bow and scrap and stoically accept our miserable unworthy lot.
Shakespeare’s patterns of advocacy of Good Governance; what constituted good order, and the consequences of bad leadership, was illustrated by articulate dialogue and good theatre. Good leaders, like Henry V, display quiet self assurance, firm decisive and resolute action, balanced by humility. Canada’s equivalents were undoubtedly, Lester B. Pearson and Brian Dickson.
Has Beverley McLachlin, in a desperate Faustian pact, agreed to serve the CCP as a Court of Appeals judge in Hong Kong, giving it the imprimatur of respectability, tacitly legitimising Xi Jinping’s crushing of democracy?
The Australian representative, NSW’s former Chief Justice, Jim Spigelman, left Hong Kong after one year. He claimed “What matters most are the facts”, recognising that the public want a legal system “dedicated to the search for truth”.
No wonder she doesn’t support protesters.
Protesters only risk their lives when all other forms of appeals fail. Without protesters, Canada would still be a colonial outpost of Britain, instead of replicating America.
(1) adapted from Conrad Black.