In an apparent effort to distract from the SNC-Lavalin affair, a leak on Monday claimed that the rift between Prime Minister Justin Trudeau and former Attorney General Jody Wilson-Raybould began far before the term “deferred prosecution agreement” entered the public lexicon. Apparently, it all started when Wilson-Raybould recommended Manitoba Queen’s Bench Chief Justice Glenn Joyal to the Supreme Court of Canada. For those unaware, Chief Justice Joyal has, over the years, advanced a welcome antidote for the Charterphile Canadian legal community. His views are not extreme or inappropriate; rather, they are intelligent appreciations of the cultural and institutional changes that the Charter introduced. The fact that he was rejected out of hand for a Supreme Court appointment—and the fact the circumstances of his appointment have been leaked—are indictments of both Canada’s legal and political system.
The most important part of all of this is the morally repugnant way in which Chief Justice Joyal’s application for the bench was released by some unknown party. Originally, it was reported that Trudeau scuttled Wilson-Raybould’s recommendation because of his disagreement with Chief Justice Joyal’s views. Then, it was reported that Chief Justice Joyal actually withdrew his application, because his wife was suffering from metastatic breast cancer. The fact that this was leaked, and that Chief Justice Joyal’s personal life was implicated in the process, is a low for Canadian politics. No one should have to endure public scrutiny on a matter as personal–and tragic–as a cancer diagnosis.
What makes it even more tragic is that, as Chief Justice Joyal noted, his personal situation seems to be used as an agenda for the broader SNC-Lavalin controversy. The implication of all of this is that someone in the Prime Minister’s Office leaked the information to the press in order to show just how misguided Wilson-Raybould was as Attorney General. If there was any doubt, the episode shows just how far some politicos will go to undermine not only norms surrounding judicial appointments but also the personal lives of those in the way.
And, all of this for views that are not at all controversial and are important counterpoints to the ongoing debates about the Charter and its institutional features. A good example of Chief Justice Joyal’s welcome assessment of the major counter-majoritarian difficulty introduced by the Charter is his 2017 speech to the Law and Freedom Conference. The main theme of the speech outlined the consequences of the “judicial potency” that the Charter introduced, a feature that “was not anticipated back in 1982.” These consequences are ones that are not often discussed, are certainly true. For example, consider a few of the consequences Chief Justice Joyal noted:
- The constitutional requirements imposed by the Charter do not “mesh” well with the legislative process, making it more difficult to make laws.
- The Charter has moved important debates outside of the realm of the legislature and into the realm of courts.
- This movement outside of the legislative realm creates “a public discourse dominated by the concept of ‘rights’,” one that is defined by “judicial formulations and tests.”
- The political culture introduced by the Charter conflates constitutionality with policy wisdom, when there is no need to necessarily merge the two concepts.
Agree or disagree, these are all important consequences of the system of judicial review introduced by the Charter, and the way in which Canadian lawyers have reacted to that power of review. There is no doubt that the Canadian legal community largely suffers from “Charteritis,” (not my term–check out David Mossop’s 1985 article entited “Charteritis and Other Legal Diseases”). And for that reason, Chief Justice Joyal’s remarks in 2017 were a welcome appreciation of the symptoms of that disease.
But in the leak published on Monday, the nuance and force of Chief Justice Joyal’s conclusions were completely lost. Apparently, when Wilson-Raybould recommended Chief Justice Joyal to the bench, Prime Minister Justin Trudeau was concerned about the 2017 speech. Trudeau was apparently concerned that Joyal would be less willing to protect rights that have come from judicial interpretation of the Charter, including rights to abortion access and LGBTQ2 rights.
If this is true, this base understanding of Chief Justice Joyal’s legal views is completely wrong. There is nothing in his 2017 speech that would indicate a preference—one way or another—for any particular issue that would come before the Supreme Court, should he have been a judge. All of Chief Justice Joyal’s broader views are perfectly consistent with a respect for stare decisis and the cases that have entrenched rights, whether those cases were rightly or wrongly decided.
Chief Justice Joyal’s views have nothing to do with these issues, simply put. They merely stand for the idea that, in the age of the Charter, the legislatures have assumed a different role. This is simply an empirical fact. There are consequences to this. One is that, rather than dealing with issues through the cut-and-thrust of political debate, we have moved those debates into the courts, which are often ill-suited to deal with these sorts of problems. The issue of Aboriginal rights and title is a perfect example. Because of the recalcitrance of governments over generations, Aboriginal groups have, strategically, moved to the courts to vindicate their rights. But that does not mean that the judicial forum is a better place to do so. The Tsilqho’tin case is a good example of this—a case which took decades of time and untold resources to reach the Supreme Court. Even people who believe in the Charter, and in the judicial role that it introduced, should recognize that legislatures should still be important areas of public debate that should be equal constitutional actors in their own right, owed respect by the Supreme Court’s judges.
While it is perfectly appropriate for the Prime Minister to want to appoint people to the bench who reflect his view of the Constitution, those views should at least be informed and educated. Based on the media reporting so far, it appears that the Prime Minister was unwilling or unable to understand that one can have different approaches to Charter interpretation—or a less positive view of the broader implications of the Charter—and still have a respect for the document as a matter of constitutional law. Even if one thinks those views are wrong, this is no reason to misunderstand what Chief Justice Joyal’s views actually represent.
Taken together, this whole SNC-Lavalin episode continues to lessen us–our law and our politics.
Double Aspect 