About Those Social Values

In its judgment in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, the majority of the Supreme Court notoriously found that one of the roles played by the Court’s Québec judges is to ensure “the representation of Quebec’s … social values on the Court.” [56] In the majority’s view, a disconnect from “Québec social values” was one reason for excluding former members of the Québec bar, such as the judges of the federal courts, from eligibility to the Supreme Court.

Perhaps the three Québec judges had this passage in mind when they wrote their joint dissent in the recent gun registry decision, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. Although, of course, they ultimately disagreed with the majority on legal grounds ― specifically, about the meaning and normative force of the “cooperative federalism” principle ― their opinion seemed to invoke these “social values” too. For example, it referred to “[t]he tragedy at the École Polytechnique in Montréal on December 6, 1989” [54] ― a reference which every Québécois reader will understand, but which might not have such resonance in the rest of Canada. Perhaps more significantly, it emphasized the Québécois’ support for the gun registry, from the moment it was proposed ― “[i]n Quebec, there was a consensus that the program would be useful” [57] ― to its abolition, which “[t]he Quebec government” opposed, according to the dissent, “with the support of … much of its population.” [66]

The empirical claim about the support of “much of [Québec’s] population” for the government’s position is unsupported. Perhaps the dissenters thought it unseemly to cite a poll in a judicial opinion, though I’m not sure it would have added very much to the unseemliness of invoking popular sentiment in the first place. But the danger in making such a claim without sourcing and, if I may speculate, probably without even checking it, is that it can turn out to be false. And, as it happens, rather like Justice Cromwell’s recent suggestion, without evidence or justification, that armed robberies have “become depressingly routine,” the claim about the consensus in support of gun registration in Québec is indeed false.

This is perhaps the most interesting finding of a Léger opinion poll released by Le Devoir this morning. At p. 17 of the report, we learn that 48% of the respondents actually oppose the creation of a made-in-Québec gun registry, while only 41% support it. This, despite the fact that all the political parties represented in the National Assembly support a Québec gun registry, as do trade unions, and much of the rest of “civil society.” But what concerns me here is not the fact that Québec’s political and chattering classes who, as André Pratte recently pointed out, do not so much argue for the creation of the registry as assert its necessity and invoke the fictitious consensus in its favour, are apparently out of touch with much of Québec’s society (or, more specifically, much of Québec’s society outside of Montreal).

What does interest me is that the representatives of “Québec’s social values” on the Supreme Court also seem disconnected from the values and opinions actually held by Québec’s citizens. Of course, it may conceivably be that while the citizenry opposes the creation of a new registry, it really was as attached to the old one as justices Lebel, Wagner, and Gascon claimed. But it seems to me more likely that even the federal registry was not much nearer and dearer to the Québécois’s hearts than the prospect of the creation of a provincial one. Why are the Québec judges unaware of this?

If I were really mean, I would say that it’s because, by the logic of the majority’s judgment in l’Affaire Nadon, which implies that leaving the courts or the bar of the province of Québec automatically makes one lose touch with Québec’s social values the sitting Québec judges cannot actually possibly discharge their mandate as Québec’s representatives. (It’s worth pointing out that, as I noted here, the Québec government accepts this logic, and has argued before the Québec Court of Appeal that one of the Supreme Court’s Québec judges could not sit at the province’s Court of Appeal. It will be interesting to see whether it sticks to its guns before the Supreme Court, and whether the Court itself accepts this implication of its holding.) However, as those who recall my criticism of the majority’s opinion in l’Affaire Nadon will have guessed, I do not subscribe to this view.

Rather, this situation seems to me to highlight the flaws of the logic that animated that opinion. For one thing, as the findings of the Léger poll suggest, there is not necessarily a great deal of consensus about what Québec’s social values are. This is not at all surprising ― the same could be said of any other open society. While nationalists ― again, in Québec as elsewhere ― like to exaggerate the degree to which the members of society agree among themselves and disagree with outsiders, we should be wary to claims to this effect. And in the absence of consensus about what “Québec’s social values” are, it is, to say the least, not clear how the people who are somehow supposed to “represent” them are supposed to do that. And then, there is the fact ― which most observers of the legal system seem to take for granted, but which somehow escaped the notice of the Supreme Court’s majority ― that judges, of all people, do not make very good representatives of their society. As I noted here, “[e]ven the average judge should be nothing like the average Joe, or the average Jane.” Judges ― especially the judges of the Supreme Court ― are members of a professional elite and, more broadly, of an urban upper class. It is not realistic to expect them to be attuned to the “social values” of their fellow citizens.

The Supreme Court’s decision in l’Affaire Nadon was badly wrong. Some of its negative consequences ― notably its  effects on the federal courts ― will be very difficult to mitigate. But there is no need for the Québec judges to take the idea of “representing” their province’s purported “social values” too seriously. They could not do it with the best will of the world, and even it were an appropriate thing for a judge to do. They should not even try.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

6 thoughts on “About Those Social Values”

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