Opinion-Policy Nexus

Stephen Harper would not be amused.

He would not be amused at all by the Chief Justice of Canada not only holding a press conference – something that did not happen in Harper’s years as prime minister – but actually fielding questions that called for responses that – horrors! – bordered on the political.

But that’s what happened on Friday when Chief Justice Richard Wagner held a 45-minute press conference in Ottawa. He answered questions that covered such topics as the high imprisonment rates of Indigenous people (“terrible”) to the need for greater transparency in the court system: “I think we have an obligation to speak to the people and to make sure the people of Canada keep their faith in the judicial system.

“Right now, we see outside Canada some of our basic, fundamental and moral values seriously attacked by leaders of other countries who pretend to be democratic,” he said – in what might or might not have been a veiled reference to U.S. President Donald Trump.

Wagner, chief justice since 2017, seemed to be enjoying himself. He promised to make the press conference an annual event. He also promised to bring his court closer to the people by hearing cases in cities other than Ottawa.

His predecessor, Beverley McLachlin, held a press conference when she was appointed chief justice 2000 and that, as far as I can determine, was her only one until her second, held when she retired 17 years later.

Her tenure was marked by strained relations with Prime Minister Harper. That came to a public head in 2014 when she tried to warn Harper, through his justice minister, that there could be a problem with the eligibility of Marc Nadon, a Federal Court justice who was being considered for elevation to the Supreme Court. As it turned out, Nadon was ineligible, but Harper never forgave McLachlin for what he claimed was her meddling in the appointments process.

Harper did not like to be challenged – not by scientists in his government’s employ or by judges striking down such Conservative policies as mandatory minimum sentences in the criminal law.

Many of the McLachlin court decisions angered the Harper government. But with the notable exception of the Nadon affair, the former chief justice managed to steer clear of public confrontations with the prime minister.

Wagner clearly does not feel bound by many political constraints. Where the McLachlin bench was generally seen as a cautious court and McLachlin herself as a chief justice who strove for consensus in judgments, Wagner said he believes in robust dissent. “As long as the dissent is made and is released in order to explain, with civility, a legal position, I think it’s a good thing,” he told reporters at the press conference.

In an exchange that echoed a discussion that takes place in Washington whenever there is a vacancy to fill on the U.S. Supreme Court, Wagner emphasized his belief that the Canadian Constitution is “a living tree” and its interpretation should not be limited to the original or literal meaning of its text.

He cited the controversial 2015 Carter decision, in which the court reversed its 1993 Rodriquez decision on medically assisted dying, thereby forcing Parliament to decriminalize assistance to patients whose death is reasonably foreseeable. While some of the facts in the Carter case were different, the court’s changed position, Wagner said, “also depended on the evolution of society, the evolution of technology, evolution of medicine, evolution equally of the moral values that link most Canadians.”

Statements like that position puts him squarely in the liberal camp among jurists and constitutional scholars, in opposition to conservative constitutionalists and strict constructionists.

The Wagner court promises to be more of an activist high court than Canadians are used to. That means more of what conservative politicians condemn as “judge-made law” that seeks to usurp the authority of Parliament to write the laws that govern Canadian society.

Stephen Harper, among other conservatives, would not be amused.

Posted

Monday, June 25, 2018 - 09:25

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