Thursday December 14, 2017

'We can do a lot better': Retiring Beverley McLachlin on what's wrong with our justice system

Beverley McLachlin is retiring from the Supreme Court of Canada after 28 years on the bench, including 17 years as chief justice. Her last day is Friday though she will spend the next six months writing up decisions she has already made.

Beverley McLachlin is retiring from the Supreme Court of Canada after 28 years on the bench, including 17 years as chief justice. Her last day is Friday though she will spend the next six months writing up decisions she has already made. (Evan Mitsui/CBC)

Listen 34:51

In her final week as chief justice, Beverley McLachlin says with confidence, tinged with pride, that she's leaving the justice system the strongest it's ever been.

But she's also aware there's still a long way to go.

Changes to the justice system were largely the focus of her exit interview with The Sunday Edition's Michael Enright. She has been on the Supreme Court of Canada for 28 years and has served as chief justice for nearly 18, a record.

CHIEF JUSTICE

McLachlin is sworn in as a supreme court justice during a ceremony April 17, 1989, in Ottawa. (Ron Poling/Canadian Press)

Her departing concerns include the need to appoint more judges and crown prosecutors to make the process more effective and clear up the backlog of cases, which a Senate report called a "crisis" this June.

"We need to have an effective justice system that is capable of rendering justice without breaching the charter, which is our fundamental law," she said. "We can do it. I believe we can do it."

McLachlin suggested several areas where more change is needed — here are a few:

Sexual assault

The recent wave of sexual misconduct allegations — from Jian Ghomeshi to Harvey Weinstein — have highlighted the justice system's shortcomings on how to deal with sexual assault.  

McLachlin admits it is a difficult area to police because "it tends to come down to credibility." Remembering exact details that happened decades earlier can be impossible.

Justice Rowe

The supreme court justices pose for a group photo during the official welcoming ceremony for Justice Malcolm Rowe, in Ottawa, Friday, December 2, 2016. Top row, left to right, Justice Russell Brown, Justice Clement Gascon, Justice Suzanne Cote, and Justice Malcolm Rowe. Bottom row, left to right, Justice Andromache Karakatsanis, Justice Rosalie Silberman Abella, Chief Justice Beverley McLachlin, Justice Michael Moldaver, Justice Richard Wagner. (Fred Chartrand/Canadian Press)

She suggests more work could be done with complainants to document their story early in the process, so there is no confusion later. McLachlin also wants to work on helping complainants understand the process "so they realize what's involved."

"I think we can do better and I hope we will in the future."

Young people

McLachlin said the justice system needs to pay more attention to vulnerable young people convicted of small crimes. She said they often enter the system "pretty innocent" but end up as criminals.

"We have story after story of people who started off with a minor offence and then end up doing more and more time, and then sometimes fail to appear," she said.

McLachlin makes emotional farewell2:58

They end up racking up all sorts of administrative offences, which don't have anything to do with the original crime.

"And their lives are lost. They are basically in and out of jail for the rest of their life. That is something we have to avoid," she says.

SCOC McLachlin Speech 20171019

McLachlin speaks with members of the audience at the Francis Forbes law lecture at Memorial University of Newfoundland in St. John's on October 19, 2017. (Paul Daly/Canadian Press)

She suggests alternative sentences, like the options offered for cases when mental health is involved.

"We have diversionary courts [and] drug courts where people say, 'I want to get better. I want to get off and get clean,' and they work with the judge and with social workers and others to do that."

Indigenous people

Indigenous people make up a sizeable part of Canada's prison population: Indigenous men represent 25.2 per cent of all men behind bars, while Indigenous women represent 36.1 per cent of all female inmates.  

McLachlin recognizes that's a problem and suggests tackling it at a young age.

"I think part of it is providing proper education and resources for kids when they're small ... and avoiding initial entry into the criminal law system."

Battle of the Atlantic 20160501

McLachlin takes part in the the Battle of the Atlantic memorial services on Parliament Hill in Ottawa on May 1, 2016. She started her career practicing law in Alberta and British Columbia before being named to the supreme court. (Patrick Doyle/Canadian Press)

She also brings up the need for alternatives if Indigenous people are convicted of crimes.

"We all talk about restorative justice but we need to do more to ... make up for the wrong and get on the right track and live a productive life. It's really an imperative that we put more focus on this."

Her advice for successor

McLachlin finishes her term on Friday, Dec. 15, but will spend the next six months writing up "reserved" decisions she has already made.

Her successor, Quebec jurist Richard Wagner, takes the oath of office Monday.

Her advice to him echoes some of the bigger changes she'd like to see.

Beverley McLachlin

A portrait of McLachlin. She retires the longest serving chief justice of the Supreme Court of Canada, and the first female to hold this position. (Holly Caruk/CBC)

"Do everything you can do to keep the court strong and happy," she says.

"You just have one vote amongst others. You don't have any particular levers you can push. But I said the one thing I thought I could do something about was ... help the eight other judges on the court be as effective and as happy and as productive and wise as I can."

Click 'listen' to hear Michael Enright's interview with Beverley McLachlin.