Back in January, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba gave a very interesting keynote address at the Canadian Constitution Foundation’s Law and Freedom conference. (A transcript is available at the website of Advocates for the Rule of Law.) Subsequently, I critiqued Chief Justice Joyal’s argument to the effect that, in the wake of the enactment of the Canadian Charter of Rights and Freedoms, the Canadian constitutional culture changed, for the worse, because the judiciary acquired a disproportionate influence on the nation’s public life, at the expense of democratically elected institutions. I argued that although there is cause for concern about judicial self-aggrandizement, this concern should not be overstated, and need not translate into a celebration of the democratic process. In my view, Chief Justice Joyal articulated “a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada”, with the subscribers to which I might make common cause from time to time, but which I do not share.
Chief Justice Joyal elaborated on his address and very generously responded to my critique in a podcast interview with Joanna Baron, the director of the Runnymede Society (and my friend). It was an illuminating conversation, and is well worth listening to, as I have finally had a chance to do. Without re-arguing all of my differences with Chief Justice Joyal, I would like to make just a couple of points ― one about something in his position that I do not understand, and the other about what might be at the heart of much of our disagreement.
In both his Law and Freedom address and the podcast, Chief Justice Joyal repeatedly lamented the decline of “bold”, “purposive” government in Canada in the wake of the Charter’s coming into force. He is careful to note that “bold” government need not be big government. It is government acting for the community, implementing a certain political vision. But I’m afraid I have a hard time seeing what exactly this means, and in particular seeing what sorts of bold government initiatives the Charter, or even its attendant political culture in which the judiciary is both more powerful and treated with more deference than it used to be, might have thwarted. I understand that Chief Justice Joyal might be reluctant to be specific, because he might be called upon to adjudicate the constitutionality of government initiatives, bold or otherwise. But perhaps someone who agrees with him could help me out?
The one specific point that Chief Justice Joyal does mention in the podcast is the inculcation of certain values, especially I take it in the education system. Now, the idea of inculcation of values by the government makes me quite uneasy, and it would make me uneasy even if I trusted the government to inculcate the right values and not collectivism and deference to authority. Blame it on my having been born in what was then still a totalitarian dictatorship ― or on my excessively American values, if you prefer. Whatever the cause, Chief Justice Joyal’s support for this sort of policy is one reason why, although he disclaims the “conservative” label, I do not resile from applying it to him. But regardless of whether his position on this is better than mine, I’m not sure how the Charter stands in the way of what Chief Justice Joyal has in mind. The closest encounter between it and what was arguably a governmental effort to inculcate values happened in the litigation that arose out of Québec’s “ethics and religious culture” curriculum. The Supreme Court upheld most of that curriculum, first in SL v Commission scolaire des Chênes, 2012 SCC 7,  1 SCR 235, and then in Loyola High School v Quebec (Attorney General), 2015 SCC 12,  1 SCR 613, only invalidating the requirement that a Catholic school teach Catholicism from a neutral (instead of a Catholic) standpoint. Surely, that particular requirement was not the sort of bold policy the decline of which Chief Justice Joyal laments.
As for the crux of my disagreement with Chief Justice Joyal, I think it concerns our different takes on the incentives that apply to political actors on the one hand, and the courts on the other. Chief Justice Joyal charges me with inconsistency, because, while I distrust elected officials and the political process, I have more confidence in the courts. Incentives, I think, are the reason why there is, in fact, no inconsistency. Political actors have an incentive to exploit the ignorance of the voters, and their irrationality (including the voters’ fear of the unknown and distaste for non-conformity). All too often, that is how they come to and remain in power. If there are political points to be scored by attacking an unpopular minority, politicians will want to score these points ― even the comparatively decent ones. Judges are not entirely immune to the incentive towards self-aggrandizement, of course, and I have often noted as much. But they have less to gain from exploiting others’ ignorance and irrationality, and are embedded in an institutional structure that at least tries to steer their own decision-making towards rationality and, in particular, towards an equal consideration of the claims of the unpopular. As a result, I think it is possible to distrust courts less than legislatures without being inconsistent about first principles.
In any case, I am grateful to Chief Justice Joyal for his contribution to the discussion about the role of the Charter and the courts in Canada’s constitutional order ― and of course for the kindness with which he treats my own position. He has not persuaded me to adopt his position, or indeed to stop describing it as conservative (without, in case that needs to be clarified, meaning to disparage it by this description!). But I think it is entirely a good thing that this approach is being articulated in such a thoughtful, and thought-provoking, way. Whatever our individual views, we are all enriched when the discussion includes voices such as Chief Justice Joyal’s.