A Law Student’s Guide to ‘The Bevinator’
Hello reader, as with all good things, let us start with a story. When I was a 1L, bright eyed and filled with hubris, one of the things that confused me to no end was the wide array of Judges and Justices whose opinions we study as gospel.
As with all things in the law, I grew accustomed over time to the characters that grace our casebooks. However, I couldn’t help thinking that some sort of explanation of who they actually are would be useful. So, like any good student, I went to Wikipedia. There, I discovered not only who these mighty beings were/are, but also that they were/are very human and very interesting.
In the coming weeks, I will be attempting to highlight some of the judges that you will encounter. Since we are in Canada, most of the articles will cover the Canadian Supreme Court and the English House of Lords. For instance, did you know that Lord Denning learned sufficient Greek at the age of 16 in the span of two months to be admitted to Cambridge?
We begin with the greatest kahuna of them all:
Chief Justice Beverley McLachlin (first of her name, Deliverer of Clear Judgements and Warden of the Court)
Born in rural Alberta, the Bev attended university during the time when Don Drapers still ruled the world and it was held as fact that women did not have the capacity, in their pretty little heads, to be anything more than housewives. Initially unsure with what to do with her life, the Bevinator majored in philosophy. The story is that she was such a boss, the Dean of the University of Alberta School of Law noticed this wunderkind undergrad and told her that she should really do law. She thought this idea was the bees knees and she’s been ripping up the legal world of Canada ever since.
Keep in mind that during those days (the late 60s) women in the legal profession were simply not a thing. Take a look at the class photos in our own hallowed halls. Such was the potential rolling off her—in what I can only assume as awe-inspiring waves—that those around the Bev were convinced she would be the one to break deeply rooted institutional barriers. For those wondering, institutional barriers are pretty hard to break.
After graduating, the Bev spent about six years in private practice across the West Coast. She then became a tenured professor at the UBC law school from 1974 to 1981. Why? Because the Bev wanted to, that’s why.
Finally, we get to the end of the beginning. In 1980, at the age of 37, Beverley McLachlin was appointed to the County Court of Vancouver. A year later she was elevated to the B.C. Supreme Court. In 1985 she was appointed to the B.C. Court of Appeal, becoming the Chief Justice of British Columbia in 1988.
In 1989, after only nine years on the Bench and 20 years out of law school Beverley McLachlin joined the Supreme Court of Canada. She was 45 years old.
“Why? Because the Bev wanted to, that’s why.”
The Bev spent the next 11 years as a puisne justice in the Lamer Court. Upon Justice Lamer’s retirement in 2000, Beverley McLachlin became the first female Chief Justice of the Supreme Court of Canada. Her ascension to the highest court in the land also made her the first female Supreme Court Chief Justice in the Commonwealth.
She serves to this day and will retire upon her 75th birthday on the 7th of September 2018.
Many words can, and have, been used to describe the Chief Justice. Prodigy, rational genius, legal scholar uber alles. The one I prefer best is beast. Let me give you an example as to why.
The body of law surrounding hearsay is lengthy and massive. The point of hearsay is to prevent evidence that cannot be tested for its veracity from being presented to the trier of fact. There’s many good reasons for this that I’m sure your criminal law prof would love to tell you if you’d just ask. Safe to say, trying to memorize them all for Professor Manson’s closed book evidence exam is a really enjoyable undertaking that I am really, really, very happy to do.
I digress. What you need to know is that there is a blanket ban on the admission of hearsay evidence. As with all things legal, there are many exceptions. During her first year on the Court, McLachlin J (as she was then), looked upon this body of law and saw that it was not very good. So she decided to wash away the old ways of doing things and, in R v. Khan, planted the seeds for the adoption of the principled approach to hearsay.
In her estimation, rather than rely solely on the legacy of exceptions that developed over hundreds of years, it would just be better if we admitted hearsay evidence on the basis of necessity and reliability. One would first ask if it was necessary to admit the hearsay evidence, i.e. is there a good reason we can’t simply get the person who made the statement to testify that it was said? Then one should ask if the statement, in the circumstances under which it is made, is reliable.
Lamer CJC saw that this was good and adopted the necessary and reliable approach in R v. Smith. It governs to this day.
Take a moment now and think about what happened here. The Bev, aged 46 and on the court for a year, saw a body of law, thought it inadequate and had the audacity, confidence and clarity of reasoning to change it completely.
At the beginning of her career, The Bev was seen as someone who could break the institutional barriers keeping women from the highest reaches of the legal profession. The Bev did this. But what she then achieved is the most astounding of all. She broke through the glass ceiling, and when she got there she proved that there was no good reason for the ceiling to have ever existed. We look to Chief Justice McLaclin as an inspiration, not because she is the female chief justice, but because she is the smartest in the land.
Max Xiao is a contributor to Juris Diction. He is in 2L.