The Rt. Hon. Beverley McLachlin sat on 19 benches with 29 judges during almost 29 years of service on the #SCC. In that time, she heard over 2,000 cases and became Canada’s longest-serving Chief Justice. pic.twitter.com/sqOHFwGQ6x
— Supreme Court Canada (@SCC_eng) December 8, 2017
If you are looking for a political difference between Canada and the United States, the Justin Trudeau pick of Richard Wagner to be the next chief justice of the Supreme Court of Canada would be a prime example.
Wagner replaces Beverley McLachlin, who has been the longest serving Chief Justice of the Supreme Court of Canada, having been in the top seat since January 7, 2000. McLachlin has been in the Supreme Court since March 30, 1989.
Trudeau picked Sheilah Martin to replace McLachlin on the court. Martin is Justin Trudeau's second nomination to the court since becoming prime minister in 2015. Malcolm Rowe, the first judge from Newfoundland and Labrador to sit on the Supreme Court, was Trudeau's first selection in 2016.
Wagner, 60, has the potential to be chief justice until the mandatory retirement age of 75. That requirement is the reason why McLachlin is stepping down. McLachlin had to retire by September 7, 2018 but chose to leave now.
"With all of that experience, his commitment to legal education, to be involved in work internationally, he has the integrity, the wisdom and the collegial spirit and co-operation that a chief justice of the Supreme Court of Canada needs," Justice Minister Jody Wilson-Raybould said.
Tradition would have suggested that the next chief justice from Quebec; Wagner is the senior member on the court from Quebec. Wilson-Raybould said that tradition was a factor along with his "flawless bilingualism" and his abilities to play a leadership role to the nine-member court.
On Monday, Wagner will be sworn in as 18th chief justice in the history of the Supreme Court of Canada.
McLachlin was appointed to the court by Brian Mulroney but elevated to chief justice by Jean Chrétien. Wagner was appointed to the court in 2012 by Stephen Harper.
In the United States, the idea of appointing a chief justice from another party would be almost impossible. Trudeau didn't have much choice; when Trudeau won in 2015, 7 of the 9 justices had been appointed by Harper. Rosalie Abella, appointed by Paul Martin, could have served as chief justice by only until July 1, 2021.
McLachlin had been the first female Supreme Court chief justice in Canada. Abella would have been the second.
Trudeau could have made the new appointment chief justice but that has been rare in Canada. Other than the first chief justice when the court was formed in 1875, the only chief justice to be appointed from outside the bench to that position was Sir Charles Fitzpatrick, who was appointed chief justice by Wilfred Laurier and served from 1906-1918.
The current prime minister instituted as new approach to selecting Supreme Court nominees to encourage more openness, transparency, and diversity as well as being functionally bilingual.
Supreme Court justices by recent prime ministers
| Prime Minister | Justices | Chief justices | Party |
| Justin Trudeau | 2 | 1 | Liberal |
| Stephen Harper | 8 | 0 | Conservative |
| Paul Martin | 2 | 0 | Liberal |
| Jean Chrétien | 6 | 1 | Liberal |
| Kim Campbell | 0 | 0 | Progressive Conservative |
| Brian Mulroney | 9 | 1 | Progressive Conservative |
| John Turner | 0 | 0 | Liberal |
| Joe Clark | 1 | 0 | Progressive Conservative |
| Pierre Trudeau | 10 | 2 | Liberal |
As for McLachlin's legacy, here is an excerpt from a Toronto Star editorial from June:
"As chief justice, she managed to maintain a harmonious court, avoiding the schisms and factions that had cast a shadow on previous iterations. She encouraged judges to be less aloof, to explain their decisions and help media cover the technical complexities of the law. She started to broadcast Supreme Court proceedings on the Internet as a gesture of openness. Her public image was strengthened, too, by her status as Canada’s first female chief justice – a source of inspiration to many, though she said her role as symbol never ceased to surprise her."
McLachlin was confronted politically when in 2014, Harper suggested McLachlin had inappropriately intervened in the process over appointing Justice Marc Nadon to the Supreme Court of Canada. Her response was to rise above and not sink to Harper's level.
“Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”
The appointment of Martin keeps the gender ratio of 4 women and 5 men on the court. Canada now has had 10 women serve as Supreme Court justices, 1 as chief justice.
Women on the Canadian Supreme Court
| Justice | Dates served | Appointed by |
| Bertha Wilson | 3/4/1982 – 1/4/1991 | P. Trudeau |
| Claire L'Heureux-Dubé | 4/15/1987 – 7/1/2002 | Mulroney |
| Beverley McLachlin | 3/30/1989 – 12/15/2017 | Mulroney/Chrétien |
| Louise Arbour | 9/15/1999 – 6/30/2004 | Chrétien |
| Marie Deschamps | 8/7/2002 – 8/7/2012 | Chrétien |
| Rosalie Abella | 10/4/2004 – present | Martin |
| Louise Charron | 10/4/2004 – 8/30/2011 | Martin |
| Andromache Karakatsanis | 10/21/2011 – present | Harper |
| Suzanne Côté | 12/1/2014 – present | Harper |
| Sheilah Martin | 12/15/2017 – present | J. Trudeau |
Brian Mulroney appointed McLachlin to the Court on March 30, 1989;
Jean Chrétien appointed McLachlin chief justice on January 7, 2000.
As we saw in the Harper days, just because you appointed a judge to the court, you won't necessarily get them to agree with you. Often times, the Harper Government would push through legislation and meet a 9-0 defeat at the Supreme Court. Besides poor legislation, McLachlin takes some credit for those rulings. Friday is her last day.
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I met McLachlin at a reception back in 2011. McLachlin was delightful and engaging. I was curious to get some perspective on Canadian law, though I strayed into an Ontario case about women being able to go topless. McLachlin wanted me to make sure I had my facts. I respected that take.
Have a really nice and very long retirement.
Twitter capture: @SCC_eng
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