Trudeau takes safe path

Moderation the hallmark of new chief justice

Prime Minister Justin Trudeau chose the path of least resistance by naming Richard Wagner as chief justice of the Supreme Court of Canada.

Trudeau would have faced an uproar in Quebec if he had picked a non-Quebecer to lead the court after the record tenure of Beverley McLachlin, who retires this week after 28 years on the court, almost 18 of them as chief justice.

Wagner, as the longest-serving Quebec judge, was the obvious choice if the goal was to satisfy those who insist there must be “alternance” between common law and civil law judges — in effect between English and French — in the position of chief justice.

It’s not strictly required; Trudeau’s father violated the principle himself when he named Bora Laskin as chief justice in 1973. But the prime minister clearly didn’t want to take on that fight.

A more provocative decision would have been to let Justice Rosalie Abella, the court’s senior judge, serve as chief justice during her remaining three and a half years on the bench. As the most outspoken advocate of human rights and minority rights among Canada’s top jurists, Abella would surely have left an indelible mark in even such a short time.

Instead, Wagner will guide the court and if his record so far is any guide, his watchwords will be moderation and caution.

Justice Wagner has a reputation as a moderately conservative judge, based in part on his dissents from court decisions to roll back some of the Harper government’s most counterproductive “tough on crime” measures. In 2015 and 2016 he took the minority position when the court struck down mandatory minimum sentences brought in under Harper. Those laws were bad, and the court majority was right to sweep them away.

It’s far from sure that the court will change course under a new chief justice. Justice McLachlin herself leaves a mixed judicial record and the chief justice has just one vote out of nine.

Still, McLachlin did make other important contributions outside her strictly judicial role that Wagner would be wise to follow.

She stood up strongly for the independence of the court when Conservatives pushed against socalled judicial activism and Harper publicly criticized her actions. And she used her position to become a moral leader on public issues, such as Indigenous rights.

At age 60, Wagner may lead the top court for the next 15 years. He should learn from her legacy and defend the court from any future attempts at political interference.