Mischief and the Chief

The Chief Justice has thoughts on the Supreme Court and the political climate

Yesterday, Radio-Canada/CBC ran an article by Daniel Leblanc that discussed Chief Justice Richard Wagner’s concerns about the standing of the Supreme Court and the judiciary more broadly, and his ideas for fostering public acceptance of and confidence in their work. This made quite a bit of noise on Twitter, and I jumped in too. A reader has encouraged me to turn those thoughts into a post, and I thought that would indeed be a good idea, so here goes.

Mr. Leblanc’s article starts with a discussion of the leak of a draft opinion in Dobbs v Jackson Women’s Health Organization, the US Supreme Court’s pending abortion case. This prompts the Chief Justice to say that “[i]t takes years and years to get people to trust institutions, and it takes a single event to destroy that trust”. The Chief Justice is worried. According to Mr. Leblanc, he “said recent global political events — like the Jan. 6, 2021 insurrection attempt in Washington, D.C. — should serve as a warning to Canadians” that our institutions, notably judicial independence, are at risk. The Chief Justice is also concerned that people are misinformed, notably in that they import fragmentary knowledge of American law into their thinking about Canada’s legal system.

To gain public trust, the Chief Justice has embarked the Supreme Court on a campaign to become more accessible. This includes a social media presence, publishing “plain English” versions of opinions, and sittings outside Ottawa. Mr. Leblanc describes the Chief Justice as saying “he knows he’s taking a risk by communicating more openly and frequently with the public and by taking the court outside of Ottawa. He said he still believes doing nothing would be riskier.”

Mr. Leblanc also turns to other people, notably Vanessa MacDonnell, to second the Chief Justice’s concerns. According to him, Professor MacDonnell “said Conservatives in the United Kingdom have criticized judges’ power to interpret the Human Rights Act, adding it’s part of a pattern of ‘political attacks’ against the courts in that country”. Attacks on judicial independence in Hungary and Poland are mentioned too, presumably at Professor MacDonnell’s behest, though this isn’t quite clear. Moreover, “Canadian institutions aren’t immune from attack either, MacDonnell said. The controversy over Conservative Party leadership candidate Pierre Poilievre’s vow to fire the Bank of Canada governor has dominated that leadership race”. Meanwhile, Senator Claude Carignan argues that “the Supreme Court is right to want to establish, through a certain communication plan, that there are differences with” its American counter part, and that it is “not there to represent a movement of right or left, or of red or blue, but … to judge the merits of the judgment according to current laws”.

So, some thoughts. To begin with, the Chief Justice deserves praise for thinking about making his court’s role and jurisprudence more accessible. Courts wield public power, and people should be able to know what they do with it. Indeed, I don’t know that anyone else thinks differently. The Chief Justice really needn’t pose as doing something “stunning and brave” with his transparency efforts; it looks a bit pathetic. But that doesn’t mean that the efforts themselves are to be denigrated.

That said, one shouldn’t expect too much from them. To the extent that people don’t understand what the Supreme Court is getting up to, I really think it’s more because of a lack of interest or effort than any failures on the Court’s part. The major cases are reported on, tolerably well, by the media. There is CanLII Connects, which hosts summaries and comments on all sorts of cases, written by students, professors, and practitioners. There are blogs like this one. There are podcasts. There are lots of people out there, in other words, who work hard to explain what Canadian courts, and especially the Supreme Court, are doing. Don’t get me wrong: I’m not saying the Supreme Court shouldn’t bother. It might do some good in this regard. But, again, when people are uninformed or misinformed ― and many are ― I don’t think it’s because of a lack of accessible information. In 2022, ignorance is usually wilful.

And I will criticize the Chief Justice for one part of his outreach programme: the roadshows. I fail to see how hearings outside Ottawa are anything other than taxpayer-funded junkets. Most people haven’t the time, let alone interest, to sit through arguments, be it in Ottawa or elsewhere. I’ve sat in on a couple of Québec Court of Appeal cases, some years ago, but I was a grad student would have done anything if that meant not writing my thesis ― not the Chief Justice’s target audience, I suspect. For more productively employed people, having a hearing in their city once in a blue moon is just not going to do anything. And of course anyone already can conveniently watch the Supreme Court on CPAC. This, by the way, is really a point on which the Supreme Court of Canada is better than that of the United States.

Speaking of those Americans, though, if one is concerned about the excessive influence of American thinking and American culture on Canada’s legal system, as the Chief Justice apparently is, one probably shouldn’t invoke American news as justifications for doing anything in Canada, as the Chief Justice definitely does. Again, some of his initiatives at least are worthwhile, but they are so on their Canadian merits, not because of anything that has occurred south of the border. Of course, the Chief Justice isn’t the only one trying to have this both ways. The Prime Minister, for instance, seems pretty keen to capitalize on American news to push ever more gun restrictions ― which he successfully deployed as a wedge issue in the last election campaign. In other words, the importation of American concerns of questionable relevance is something Canadians of all sorts, and not just the dark forces supposedly gnawing away at our institutions’ foundations, do, and Mr. Leblanc would, I think, have done well to note this.

Now, let’s consider these dark forces a bit more. Specifically, I don’t think that the discussion of populist attacks on courts in Mr. Leblanc’s article is all that helpful. I’m no expert on Poland and Hungary, but I take it that some Very Bad Things really have happened there, as part of broader programmes to dismantle institutional checks and balances and constraints on government power. To say that anything of the sort is about to happen in Canada, or could succeed if attempted, strikes me as a stretch. The analogy between the courts and the Bank of Canada doesn’t quite work, since the latter lacks constitutional protections for its independence. But perhaps I am mistaken about this.

What I am pretty sure about, however, is that it is quite wrong to equate the “attacks” on the judiciary in the UK with those in Hungary and Poland. To be sure, there have been some dangerously vile attacks in parts of the media, some years ago. I have written about this here. And it may well be that the government did not defend the courts as strongly as it should have at the time. But so far as government policy, let alone legislation, is concerned, it simply isn’t fair to say that the courts have been “attacked”. There is debate about just what their powers with respect to judicial review should be for instance, and it may well be that some of the proposals in this regard are at odds with the best understanding of the Rule of Law. But nobody is suggesting anything so radical as, say, requiring UK courts to defer to civil servants on questions of law, so I’m not sure that Canadians, in particular, should be too critical about this.

The specific issue example to which Professor MacDonnell refers is even more clearly a nothingburger. It has to do with the interpretation not of the Human Rights Act 1998, but of other legislation, which the Act says “[s]o far as it is possible to do so … must be read and given effect in a way which is compatible with the” European Convention on Human Rights. As readers will know, I happen to favour very robust judicial review of legislation ― more so than what exists under the Canadian Charter of Rights and Freedoms, let alone the UK’s Human Rights Act. But I’m inclined to think that UK courts have gone rather beyond the limits of what is fairly “possible” in exercising their interpretive duty. They certainly have gone further than New Zealand courts applying a similar provision. Whether or not constraining them in this regard is the right thing to do on balance, there is nothing illegitimate or worrying about it.

It is important to remember that, precisely for the reason the Chief Justice is right to work on the Supreme Court’s transparency ― that is, because the court is an institution exercising public power on the citizens’ behalf ― the Court can also be subject to legitimate public criticism. Again, criticism can be overdone; it can be quite wrong. But on the whole it’s probably better for public institutions to be criticized too much than not enough. And the courts’ powers, just like those of other government institutions, can and sometimes should be curtailed. Each proposal should be debated on the merits. Many are wrong-headed, as for instance the calls to use the Charter “notwithstanding clause”. But they are not wrong just by virtue of being directed at the courts.

Meanwhile, Canadians who are concerned about public perceptions of the judiciary should probably worry a bit ― quite a bit ― more about the actions of our own judges, rather than foreign governments, let alone journalists. Sitting judges to some extent ― as when, for instance, they decide to give “constitutional benediction” to made up rights instead of “judg[ing] the merits of the judgment according to current laws”, as Senator Carignan puts it. But even more, as co-blogger Mark Mancini has pointed out, former judges who compromise the perception of their political neutrality and lend their stature and credibility to serve the wishes of governments at home and abroad:

In short, I think that the Supreme Court is trying some useful, if likely not very important things to become a more transparent institution, which is a good thing on the whole. But it is not saving democracy or the Rule of Law in the process. One should certainly be vigilant about threats to the constitution, but one should not dream them up just for the sake of thinking oneself especially courageous or important. One should also be wary of grand transnational narratives, and be mindful of the very real imperfections in one’s own backyard before worrying about everything that’s going on in the world.

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.

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