Saskatoon StarPhoenix

WHY THE TOP JUDGE IN THE COUNTRY IS SPEAKING OUT.

- JOHN IVISON

The Gnomes of Ottawa may not be the secretive, undergroun­d creatures of modern fairy tales. But the men and women who have run Canada’s great institutio­ns have tended to be equally shy and enigmatic. Until now, that is.

Richard Wagner, the new chief justice of the Supreme Court of Canada, held a press conference Friday that lasted nearly twice as long as was originally intended.

This kind of proactive disclosure isn’t quite unpreceden­ted — apparently his predecesso­r, Beverley McLachlin, held a press conference when she was first appointed chief justice in 2000. But they have been rarer than hen’s teeth since then.

The Wagner press conference came in the same week that Michael Wernick, the clerk of the Privy Council, appeared before a Senate committee and urged Parliament to consider changes to the law to make it easier to fire public servants for misconduct, poor performanc­e or mismanagem­ent — an opinion that will not endear him to many of his contempora­ries.

What to make of this break into the sunlight by the leaders of institutio­ns that have generally felt the media, and by implicatio­n the public, should mind its own damned business?

It appears that, quite separately, they have reached the conclusion that the global threat to democratic institutio­ns could spread to Canada, unless those institutio­ns can convince citizens they are relevant and responsive.

“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,” said Wagner. “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, without mentioning the name Trump.

He said he believes Canadian institutio­ns have a role to play in reinforcin­g support for the rule of law and those moral values. “We should build on that and say it,” he said.

Wernick has appeared at two parliament­ary committees in recent weeks, the first defending the public service against a charge by Auditor General Michael Ferguson that it is broken and guilty of “incomprehe­nsible failure” in the case of the Phoenix pay system debacle.

Yet, while Wernick was outspoken in his defence of a “world-class” bureaucrac­y, he recognized the need for improvemen­ts in the culture of the public service, to make it less risk averse and more creative. Part of the solution in his view is to reform the incentives and disincenti­ves available — that is, make it easier to fire people if they are blatantly inept or badly behaved.

In an era of precarious work, Wernick knows the public service cannot be so protected from the storms buffeting the rest of society that it becomes the preserve of a privileged elite. It is discredite­d enough in the eyes of many Canadians, who feel they are paying over the odds for gold-plated pensions and feather-bed working conditions.

Both Wagner and Wernick are intent on continuing to open up their organizati­ons to public scrutiny. Judges’ expenses will be published under the new Access to Informatio­n bill before Parliament; plain English summaries of judgments are now released as “cases in brief ”; the court has embraced social media, and there are plans to release a “modern, accessible” annual report.

Wagner said the entire court will travel to Winnipeg next year to meet appeal court judges. “I would like the court to hear cases in other Canadian cities,” he said. “This is about bringing the court closer to Canadians.”

He wouldn’t comment on specific cases, such as last week’s Trinity Western decision, that critics claimed seemed to put freedom of religion at the bottom of a hierarchy of rights.

But he indicated that Canadians can expect to see more dissenting opinions in future than was the norm when McLachlin was chief justice. “I like dissent,” said Wagner. “It’s normal in an open society.”

Emmett Macfarlane, an associate professor in political science at the University of Waterloo and author of Governing from the Bench: the Supreme Court of Canada and the Judicial Role, said McLachlin’s leadership style was to seek consensus and unanimity, while under Wagner we may see more split decisions.

Macfarlane welcomed the trend towards transparen­cy in a court he already believes is the envy of many of its peers.

The moves by both Wagner and Wernick to make their institutio­ns more legitimate in the eyes of Canadians should be encouraged.

The American republic is in danger of following Ancient Rome by precipitat­ing its own demise.

Two-thirds of Americans don’t know they have three separate branches of government, so they don’t know who to blame when things go wrong. That pervasive civic ignorance has created the right conditions for a strong man to come forward and corral power with the promise he will solve all problems.

The tragedy unfolding in the United States may yet fulfil Thomas Jefferson’s prophesy that “an ignorant people cannot remain free.”

These apparently unrelated initiative­s in the Supreme Court and the federal bureaucrac­y are attempts to make sure Canada’s institutio­ns remain vibrant and act as a counterwei­ght to a Trump or an Augustus.

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