Double Aspect

As some of the readers will already have seen, the National Post has published an op-ed I have written about the retirement last week of Justice Brown from the Supreme Court. As many others, including co-blogger Mark Mancini (with Kris Kinsinger), have said, the whole affair is lamentable, and the lack of transparency about it is especially troubling, albeit unsurprising. What I think my op-ed adds to the conversation is the concern that the powers-that-be ― that is, Chief Justice Wagner and the Canadian Judicial Council (CJC) ― may have overreacted to the complaint about Justice Brown out of an undue concern with the judiciary’s image. I write:

Undue regard for the judiciary’s image risks coming at the expense of the independence of individual judges. The CJC or the chief justice might think that throwing a controversy-embroiled judge under the bus of hostile opinion will serve the greater good by preserving the institution’s public standing. But it will only encourage more complaints by people who are, or affect to be, too easily offended.

Ultimately, this will not save the judiciary’s public standing either: why should the public trust an institution to lawfully uphold the rights of unpopular members of society when it readily submits to passing controversy? The courts sometimes must place themselves on the wrong side of public opinion and media criticism. The courage to do so is a muscle that needs exercising, not saving.

Some readers, though, have written to me, insisting that the Chief Justice must have wanted to get rid of Justice Brown for being insufficiently aligned with the Supreme Court’s progressive philosophy. In their view, what happened isn’t just a well-intentioned but misguided overreaction but an outright purge.

I don’t agree with this for a moment. The facts, some of which I discuss in the op-ed, and others that anyone who follows the Supreme Court will be aware of (though, in fairness, I don’t know whether my correspondents are lawyers), do not support this very serious charge.

Most obviously, although there are certainly important differences between Justice Brown’s judicial philosophy and the Chief Justice’s, they are not all that far apart. Consider, for instance, that they not only agreed on, but actually co-authored the majority opinion in Toronto (City) v Ontario (Attorney General), 2021 SCC 34, a case that was as sharply divided and politically charged as any in recent years. And this was by no means the only example of their agreeing in an important case, either. (Off the top of my head, I don’t recall co-authorship, but I may be forgetting something obvious.) In short, with Justice Brown’s departure, the Chief Justice loses an ally more than a nuisance, from his perspective.

Indeed, on the whole, the Chief Justice is probably further apart, ideologically, from colleagues such as Justice Abella (when she was still on the court) and Justices Martin and Karakatsanis. He hasn’t purged them, and there is just no reason to accuse him of having purged Justice Brown. For that matter, it’s worth setting the record straight about Justice Brown himself. Even as he was often willing to buck the bien pensant consensus, he was not always at odds with it either. He was part of the unanimous pro-regulatory nightmare in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342 and, more recently, the cheap humanitarianism of R v Bissonnette, 2022 SCC 23. As I say in the op-ed, I think his heterodoxy was invaluable ― even if it was less than full-time. But let’s pay him the homage of treating him as the complex thinker he is, and not an avatar of antiestablishmentarianism.

I’ve written before to argue that the ideology, or judicial philosophy, of Canadian judges matters. But ideology, in the sense of philosophical commitments that bear on the resolution of legal disputes, isn’t all there is to them either. People who claim that Canadian judges are ideological virgins, unlike their dissolute American colleagues, are quite wrong. But it is equally a mistake, which is best left to wannabe-American journalists, to explain everything that happens on Canadian courts through liberal/conservative or woke/anti-woke dichotomies.

All the more when other explanations make better sense of the facts. As I point out in the op-ed, excessive regard for the judiciary’s image, morphing into a pathological desire to avoid any controversy, however undeserved, is probably behind the CJC’s bizarre persecution of Justice Patrick Smith, then of the Superior Court of Justice of Ontario, for having taken up an interim position as dean ― and saviour from crisis ― of Lakehead’s law school. As recounted in the Federal Court’s decision reversing the CJC’s findings of unethical conduct, this was commenced sua sponte, without even a formal complaint having been made, once the CJC became aware of some media controversy, and proceeded in violation of both the law and the requirements of procedural fairness. And Justice Smith isn’t the only example either.

If my conjecture about what happened to Justice Brown is right, then he is not the first victim of the CJC’s trigger-happiness. Partly for this reason, this conjecture strikes me as rather more plausible than that of an ideological purge, which, as I have explained here, is not. If I am right, things are bad enough. Indeed, well-intentioned blindness might be a worse problem, because a more intractable one, than the deviousness my correspondents imagine.