Chief justice warns against political attacks on judicial independence

Supreme Court Chief Justice Richard Wagner had a ringside seat when the U.S. Supreme Court descended into crisis last month.

Wagner was on an official visit to Washington, D.C., when a draft majority decision that could overturn American abortion laws was leaked to the media, setting off a political storm that still rages south of the border.

“It was catastrophic,” he said in French during an interview with Radio-Canada.

“It makes you think that there is nothing sacred in some countries and that an institution can be weakened very quickly.”

Wagner said that, given the less polarized nature of the Canadian bench, he doesn’t think a similar leak would occur within his court — but he argued this event demonstrates the fragility of judicial independence.

“Just like trust. It takes years and years to get people to trust institutions, and it takes a single event to destroy that trust,” he said from his office in Ottawa.

The need to maintain and build that trust is one reason why the Supreme Court is ramping up a campaign to explain its role in Canada’s democracy to Canadians.

Wagner, who has been on the Supreme Court since 2012 and has served as chief justice since 2017, said recent global political events — like the Jan. 6, 2021 insurrection attempt in Washington, D.C. — should serve as a warning to Canadians.

“We can never say to ourselves, ‘We have judicial independence, we are in Canada, everything is fine, we have respect for the institutions.’ No, we have to be on the lookout,” he said.

“And as soon as an incident occurs that can attack judicial independence, we must react, we must denounce.”

As part of its outreach campaign, the court now publishes plain-language versions of its decisions and recently started an Instagram account.

The court also has started holding hearings outside of Ottawa. Supreme Court justices heard a case in Winnipeg back in 2019. They’ll hear two cases in Quebec City in September. While in Quebec, the nine judges are expected to host a free public event to answer questions about the role of the court.

Wagner said misinformation about Canada’s legal system was on display this past winter when protesters gathered in Ottawa for nearly a month to fight COVID-19 restrictions.

Some protesters cited the “First Amendment” — which protects freedom of expression in the United States — to claim rights in Canada, he said.

“I have always said that the reason for prejudice is a lack of knowledge. So the more information we give people, the better they will be able to form an idea,” Wagner said.

“It’s not for judges, judicial independence. It’s for citizens. This is to ensure that citizens understand that when they come before the courts, they will have access to an impartial and independent judge whose decision will not depend on an occult influence.”

Vanessa MacDonnell, a law professor at the University of Ottawa, said legal systems are under attack around the world.

She 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.

In 2020, Polish President Andrzej Duda signed into law a widely-criticized piece of legislation that gives politicians the power to fine and fire judges whose actions and decisions they consider harmful. Human rights advocates also have expressed concern in recent years about moves by the Hungarian government to limit judicial independence.

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.

“It only makes sense that the chief justice of a Supreme Court, seeing what is happening elsewhere in the world and how quickly the situation can deteriorate, decides that this is an issue to be confronted sooner [rather] than later, proactively rather than reactively,” MacDonnell said.

Conservative Sen. Claude Carignan, a lawyer who follows legal issues closely, said political events in the United States often have repercussions in Canada. He said he sometimes hears people confusing the role of the Canadian Senate with that of its American counterpart.

“We are invaded by the discourse of what is happening in the United States in our various media,” he said.

“I think the Supreme Court [of Canada] is right to want to establish, through a certain communication plan, that there are differences with the Supreme Court of the United States and that when one sits on the Supreme Court of Canada, we are not there to represent a movement of right or left, or of red or blue, but we are there to judge the merits of the judgment according to current laws.”

Guillaume Rousseau, a professor of law at the University of Sherbrooke, said he applauds the effort in recent years to make the Supreme Court more accessible. He also warned that this approach comes with risks.

Rousseau, who advised the government of Quebec on its controversial secularism law, said the justices’ visit to Quebec City will coincide with the provincial election.

While in Quebec, the Supreme Court justices will be hearing a case involving a dispute between the federal government and Quebec over the legality of home cultivation of cannabis.

“It concerns the sharing of powers, therefore the autonomy of Quebec, so it could become very delicate,” Rousseau said, speaking to Radio-Canada in French.

Still, “in a democracy, when you have political power, it is obviously very healthy to do political communication, to explain yourself, to have a concern for transparency, accessibility for citizens,” he added.

Wagner said 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.

“I think that the benefits are much greater than some criticisms that there could be,” he said.

“If they lose faith in the justice system, what will happen? People will solve their problems on the street and it will be anarchy, eventually, and we completely lose the calm, the serenity, the well-being of the citizens in these cases.”

Wagner spoke to Radio-Canada before the Supreme Court recently released a controversial ruling that said Alexandre Bissonnette, the gunman who killed six people in a Quebec City mosque, cannot wait more than 25 years before being eligible for parole.
Three leading candidates for the leadership of the federal Conservative Party — Patrick Brown, Poilievre and Jean Charest — have issued statements condemning the decision and pledging to use the Constitution’s notwithstanding clause to overturn the ruling should they become prime minister.

The Liberal government said that while it supports a longer period of parole ineligibility in cases like the mosque shooting, it will respect the Supreme Court of Canada’s decision.

Daniel Leblanc is a reporter with more than 20 years experience in investigative journalism and federal politics. He is a past winner of the Michener Award, the Charles Lynch Award and three National Newspaper Awards.