Chief Justice Wagner delivered another of his annual press conferences today, his seventh. One was too many, and this was a good reminder of why. Before getting to the point, though, it may be worth repeating what I said on a similar occasion two years ago. The Chief Justice’s sense that the Supreme Court’s role and output should be transparent and intelligible to Canadians is not wrong. Indeed, I wrote, he “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.” But that doesn’t mean everything done in the name of transparency and accessibility is wise. In that post, I criticized the Supreme Court’s hearings outside Ottawa. Here, I focus on the press conference itself.
For one thing, I think it is unseemly in focusing attention on the Chief Justice. Instead of shining a light on the institution which he leads, which is generally to the good, it puts him on a pedestal he neither needs nor deserves. Unsurprising, I suppose, for a man who thinks the court ought to have a bust of him in addition to the flesh-and-blood version, but indecorous all the same. He has no actual news to impart. He is simply attention-seeking, as if he were a common politician, which is the last thing he is supposed to be. There is no reason transparency cannot be combined with reserve ― and self-respect.
But there are less abstract reasons for avoiding press-conferences. Judges, even when appropriately mindful of the requirements of transparency, aren’t supposed to speak about certain things ― in particular, past, present, and future cases, though they should also avoid becoming political commentators. Journalists, though, don’t necessarily understand this, and ask questions that invite judges to cross these lines. I don’t blame them. Asking questions, even not terribly appropriate ones, is their job, and a press-conference by the Chief Justice is bound to attract journalists who are not especially well versed in these proprieties anyway. The problem, rather, is that the Chief Justice is willingly putting himself in a position where he is tempted to answer questions he should not be answer. And he gives in to the temptation.
Thus, according to La Presse’s report of today’s proceedings, he castigated political responses to a reference to “a person with a vagina” in R v Kruk, 2024 SCC 7 (including a unanimous motion by the Quebec National Assembly, because, well, it’s the Quebec National Assembly) as “misinformation”. I don’t care about the merits of particular culture-war skirmish. What is important to me is that judges are supposed to let reasons for judgment speak for themselves. It’s not their role to go out and defend them after the fact. Least of all that of the judges of the Supreme Court of Canada, who are not short of defenders in the media and the academy.
But perhaps more worrying is the fact that the Chief Justice is wading into the public debate about “disinformation” and its dangers. I actually agree with at least one point he is making, which is that elected officials are a particularly concerning source of bs, or disinformation if you prefer. But, in part for that very reason, they are tempted to legislate against it (when peddled by their partisan opponents of course), and the Chief Justice may well have to rule on the constitutionality of their endeavours. It is unhelpful, to say the least, for him to venture his opinions on the subject in advance.
Another matter that could end up before him in even shorter order is the litigation about the federal government’s failure to promptly replacing retiring judges, which has resulted in a highly deleterious level of judicial vacancies, and, in turn, to cases, including important prosecutions, not being able to proceed. In Hameed v Canada (Prime Minister), 2024 FC 242, the federal court contrived to find a constitutional violation in this (readers may recall that I was not impressed with its reasons, though the outcome is a closer call), but the government is appealing. It is not difficult to imagine this case going all the way up. So you’d think the Chief Justice would have the good sense to refrain from speaking on this subject. But no, the CBC has the video of his doing so. His remarks are relatively conciliatory, but that’s beside the point. He should shut up about a case that is, likely enough, heading his way.
Finally, the Chief Justice really should not be answering questions about the United States. He knows this, but cannot help himself. Two years ago it was the January 6 events he felt the need to go on about. This time, inevitably, it’s Donald Trump’s recent conviction. La Presse quotes him as saying that he would “not comment that particular situation, what is happening in that country”. There, he knows it! And yet: “I have decided to stop understanding what’s going on”. We would not, oh no we would not, have done without his snark and his “smile” (dixit La Presse). And of course the Chief Justice had to get in a comment to the effect that judicial appointments in the US are “polluted” by partisanship. I bet he’ll tell that to, say, Ketanji Brown Jackson the next time they have one of their Canada-US supreme court junkets. This is perhaps less important than the other issues, but it’s a good illustration of how the press conference format leads the Chief Justice into saying things he himself knows he shouldn’t be.
This entire exercise is worse than useless. The Chief Justice’s views on the issues of the day do not, contrary to his supposed intent, clarify the Supreme Court’s work to the public. Like his hypertrophied image-consciousness, they only serve to undermine the perception if not the reality of impartiality on which the Court’s legitimacy depends even more than on a broad understanding of its work. The Chief Justice’s apparent conviction that sharing them is valuable comes across as the symptom of an unhealthy self-importance. He has missed to many opportunities to keep quiet already; but there will always be a next one.
Double Aspect 
