Double Aspect

For the last few years, I had been a Senior Fellow at the Macdonald Laurier Institute. Today, I have resigned from that position, for much the same reasons as I had joined when invited to do by Aaron Wudrick, the then-director of domestic policy. MLI is many things, of course, but relevantly to me it both well before and after I joined, the rare organization that cared about the Canadian constitution (all of it, not just some favoured bits) and the Rule of Law in Canada. In recent weeks, it has become apparent to me that that is no longer the case, and so I must leave. A bit more on why I have come to this conclusion in my email to Peter Copeland, Mr. Wudrick’s successor:

It is an honour to have held that title [of Senior Fellow]. As you understand, heterodox academics are not showered with accolades in Canada. This was the one I had. But of course the accolade was less important than contributing, even if it was in a very modest way, to the work of an organization that was, as I saw it, supporting the cause of constitutionalism and of the Rule of Law in Canada. These too have long been few and far between.

And so it is distressing to have come to the conclusion that MLI has abandoned that cause. Constitutionalism and the Rule of Law require far more than an independent judiciary, of course, but they cannot exist without that. Yet MLI has been promoting the work of those who would undo judicial independence in Canada by orchestrating the removal of judges, not for misbehaviour in office as this has been understood for 325 years in Britain and in the Commonwealth, but for making politically obnoxious decisions. The Rule of Law depends, ultimately, on judges being able to decide cases in accordance with their best and honest understanding of the law, and on Parliament and the Crown complying with their decisions, subject to overturning their future effects by statute or by constitutional amendment, as the case may be. This is true even when the objections to these decisions are made on what may be sound political or indeed legal grounds. Judges are not free to follow where their honest understanding of the law leads them—misguided as this understanding may be, the judges being human—when they know they are subject to professional and financial punishment if they do so. The authors of the Act of Settlement 1701 understood this; so did the framers of the US Constitution; so did the Fathers of Confederation and the framers of the Charter. MLI now gives its imprimatur to people who have rejected this constant wisdom.

As I told you in my last email, it would have been bad enough had MLI only sought to make this idea part of a public debate. But your position goes beyond that. MLI, you are telling me, is not interested in publishing my objections to this view. That amounts, in effect if not also in intent, to an endorsement of opposition to judicial independence in Canada, and therefore to the Rule of Law and to constitutionalism, which cannot exist without it.

For me, these principles are core to what I am trying to achieve as a scholar and uphold as a citizen. I cannot remain affiliated with an organization that has become adverse to them.

I am genuinely concerned by the direction in which sections of the Canadian right are going — the direction of a rejection of the Rule of Law and of constitutional limits on political power. Important sections of the left got there first, of course, abetted or even cheered on by complacent or indeed enthusiastic judges. But that does not excuse others who are seeking to do the same, and it does not excuse the journalists, think-tankers, and academics who are supportive of this project. At all events, my place is not with them.