A chief justice dreams of travel

But will they have a merch table? A Feb. 25 item in the Canadian Bar Association’s magazine The National applauds our chief justice’s idea, pitched last year in the Globe, to take the Supreme Court out on the road like a rock band. “The idea,” Justice Richard Wagner said at the time, “is to be close to the people.” Close enough to mosh? “It’s all in line with our policy to be present in each province, to make sure that every citizen feels that the Supreme Court is there for them. And to give the chance to those people who cannot be in Ottawa to look at how it’s done.”

Any sign of a commitment to transparency on the part of the Canadian judicial system must be regarded as welcome, but the idea of the Supreme Court transforming itself into a travellin’ medicine show seemed to be a strange leap past more obvious measures. Any newspaperman would be tempted to suggest cracking down on judges’ lazy overuse of publication bans, for example, or perhaps moving the country’s courts one inch toward reforming what is still a wilderness of costly pre-digital methods of accessing public legal records.

Still, the CBA has given its official imprimatur to Chief Justice Wagner’s homely idea. Its president, Raymond Adlington, observed in a letter to Wagner that webcasting has brought SCC hearings “within reach of many Canadians ... However, additional dimensions of understanding and appreciation of the SCC’s work are available for those able to attend in person.” These are not described. Perhaps they are beyond describing.

There is something downright odd about Wagner’s dream. It may be desirable in some sense for the Supreme Court to be “close to the people,” but the Court may already be the most popular element in Canadian government, give or take the Queen. One wonders if Wagner really wants to enhance its public esteem, or merely wishes to demonstrate it.

But a supreme appellate court is not really designed to be the popular element in a modern constitution. We don’t elect it. Its membership is restricted to one profession. It’s an undemocratic — when necessary, anti-democratic — body drawn from a forensically trained elite.

And, uh, the last time I checked we had an institution called the “Commons.” This creature is rooted so firmly to the soil of Ottawa that when its physical home there begins to crumble, we unthinkingly find other quarters in Ottawa, rather than making it spend a decade in Medicine Hat or TroisRivières. Something is backwards here. Why is no one suggesting that the Senate go on tour? (I know, I know. Don’t all suggest Mars at once.)

Perhaps it should not be held against the chief justice, but his proposal calls attention to the constant tension between populist and elitist forces in our semidemocracy — a theme that lies behind much of what is in the day- to- day newspaper headlines. The latest example is, of course, the SNC-Lavalin scandal. Here, perhaps before your actual eyes, you have a federal attorney general insisting that the work of her director of public prosecutions should remain independent and unsullied by base electoral motivations. Her colleagues complain that democratic responsibility is a good thing, and argue that an A- G is answerable to the prime minister Canadians chose with their votes, and suggest by implication that this sort of decision can legitimately be made with electoral popularity in view.

The position is not altogether without hypothetical merit: it is the specific circumstances that have created a stench. Reconciling the rule of law with the democratic spirit is one unceasing, stressful balancing act, to be performed with close attention to our history and culture. What I would add is that the current Liberal government is not very competent at this balancing act.

Even before the SNC affair exploded one could not help feeling this. They introduced far-reaching changes to the organization of the Senate, trying to make it more “democratic” by ... taking Senate appointments out of the hands of the prime minister, giving them to multiple layers of independent panels, and formally severing the Senate Liberals from their democratically elected colleagues in the Other Place. They did something similar with the Supreme Court itself, creating a board to oversee appointments that are constitutionally executed on the prime minister’s advice. They trusted their electoral reform mission to a multiparty committee, then sent what they had ordered back to the chef in a rage.

All these boards and panels are intended to provide the political cover and prestige associated with independence from partisan politics, but Liberals know that they are bound to end up with answers the prime minister likes, and can be evaded when they don’t. Jody Wilson- Raybould ’ s testimony on Wednesday gave the Canadian game away in a myriad of respects, and one was her account of the PMO’s suggestion that some legal notable could be found to do an “external review” of the decision to prosecute SNC.

Wilson-Raybould was not doing what was expected of her by the PMO — to make her own politicized review of the DPP’s finding — and if the external reviewer of her review made the same error, no doubt there could be an external review of the external review of the review. If the pretzel logic of this is making you queasy, completely irrespective of the corruption, join the club.