Illustration: Radek DrutisWere it not for the fact that it’s January, dark, and brutally cold, this could easily be mistaken for spring prom night at the Fairmont Château Laurier in downtown Ottawa. Young women in sleek sleeveless dresses and heels, and young men encased in jackets and ties swish their way down the length of the stately French Corridor. They drape arms over shoulders and take each other’s photos. They gather at the bars lining the walls. Drinks are poured, and conversations grow louder.

In the midst of the semi-formal swirl, on this Friday night at the end of a long and busy week, stands Canada’s top judge, holding a copy of the speech she was supposed to have delivered forty minutes ago. If the delay has thrown off Madam Chief Justice Beverley McLachlin’s personal schedule, if she’d rather be at home with a good book, it doesn’t show. She remains the smiling centre of an ever-shifting circle of fresh-faced university students, chatting lightly about student life and parliamentary procedures.

The restless crowd finally, tardily assembles in the main ballroom for McLachlin’s pre-dinner speech. Tonight is the culmination of three intense days for these Queen’s students, in Ottawa to take part in the university’s annual model parliament. They’re ready for a party, not more talk. But they are, after all, political science and policy junkies. So they lean forward, chins in hands, to listen as the chief justice begins to speak.

She warms them up with an anecdote about a similar model parliament exercise from her own university days in the ’60s. Among those involved, she tells the students, were future MPs and mlas, an eventual Bank of Canada governor, and a high-powered current diplomat. And then, of course, there was McLachlin herself — the Alberta farm girl who made her way from Pincher Creek to the chief justice’s chambers.

But that is a tale for another time. Her point to her youthful audience tonight is this: they, too, will someday be in positions of responsibility in this country. And when that day comes, they will inherit a nation characterized by three values embodied in the Canadian Charter of Rights and Freedoms, she says: “respect for rights, respect for difference, and a commitment to the resolution of differences by peaceful compromise.” She lays out the role of the Supreme Court in Canada in upholding these values with the same clarity she strives for in her legal decisions. The legislature passes the laws. The court steps in when asked by Canadians to determine if the law is consistent with the Charter. “And sometimes — some people think too often, but other people are very happy for this — sometimes the court says, ‘Yes, the law, to a certain extent, is inconsistent with the Charter.’ And when that happens, the law falls.” Usually, legislators will then recraft the law in ways that achieve their goals while respecting Charter rights, she explains. “The legislature, let me say — as I have often said before — bears the primary responsibility for adopting new laws and changing old laws to meet the needs of society…and there can be no doubt that our Parliament and the legislature are the best forums in which to resolve the complex social issues that face our society.”

The back-and-forth between the court and Parliament, she tells them, has been referred to as the metaphor of Charter “dialogue.” The term became popular during the ’90s, a time when the Reform Party had its sights set on the judicial activism it believed was emanating from the unelected Supreme Court bench. It was framed in an analysis, by academic Peter Hogg and one of his students, Allison Bushell, of the court’s powers in interpreting the Charter. Since the last word nearly always rests with elected representatives, the authors concluded, the court’s powers don’t amount to a veto over politicians. A decade after they first explored the metaphor, the pair noted that the Supreme Court had used it to justify both an active and a deferential approach to Parliament.

As she enters her tenth year as chief justice, McLachlin has carved out a reputation for employing dialogue in a measured way — a style that has helped silence complaints about judicial activism and attendant calls for court reform. She stresses the necessity of balanced institutional roles in her remarks tonight. “What separates the ‘have’ nations from the ‘have-not’ nations,” she tells her audience in closing, “is very often not resources, not the climate, not even history, but their governmental institutions.” There is warm applause.

Third-year political science major Daniel Salvatore was won over by the talk, even if McLachlin didn’t reveal her favourite Charter section when questioned afterward. She wouldn’t say, he recalls with a grin. Mike Sinclair, another third-year student, is similarly impressed. Her speech “really resonated with me,” he says. As the soup course arrives, McLachlin slips out the side door. Message delivered, mission accomplished.

The Supreme Court of Canada has withstood a great deal of upheaval since 1982, when the Charter of Rights and Freedoms was passed. The first court appointed in the post-Charter era, headed by Brian Dickson, blazed the trail, handing down landmark decisions on such socially charged issues as abortion and language rights, pushing the boundaries of judicial powers, and signalling, with one of its first Charter decisions (striking down the federal Lord’s Day Act), that it was ready to play the activist. The 1990s, under Chief Justice Antonio Lamer, were marked by heated debate over “judge-made law” — debate propelled by decisions involving law-and-order issues, native land claims, and gay rights, and fuelled by the Reform Party’s push to restrict judicial power to interpreting the rules rather than setting them. But the noise seemed to subside after McLachlin took over in 2000.

Her intentions in this regard became clear in November 1999, some two months before she was officially sworn in as chief justice, when she called an unprecedented news conference at the court and laid out her priorities. One, she planned to expand the court’s public outreach efforts, with the aim of helping Canadians understand the court’s work and demonstrating that it wasn’t run by aloof, robed figures delivering edicts from on high. Two, she wanted greater consensus in the court’s decision-making — not a surprising objective, given the climate at the time. And three, she indicated the need for a “courageous” but careful approach to judicial review (the term used to describe the power conferred upon judges by the Charter, which allows them to strike down laws crafted by legislatures). The courts didn’t wish to be “a surrogate Parliament,” she told reporters. Still, they had a legal role to fulfill and while their goal was “incremental policy change, case-by-case change,” they would be willing to go further when necessary.