Judgment call

This week, Canadian Supreme Court Chief Justice Beverley Mclachlin announced she will be retiring from the Bench at the end of this year. Mclachlin was first named to the court by Brian Mulroney in 1989 and was appointed Chief Justice by Jean Chretien in 2000.

Although Mclachlin’s tenure on the bench has been marked by some important constitutional questions, from assisted suicide to indigenous rights and the right to a speedy trial, the judge herself has largely remained above the political fray and, with one notable exception, generally avoided personal controversy.

As Canadians watch with either wonder or dismay as our American cousins undergo a serious attack on their democracy, we can take some comfort in the fact that the make-up of Canada’s Supreme Court have never played the political role that their American colleagues have. Nor, in fact, has the entire Canadian judiciary ever been called on to serve as an ideological battleground the way American courts have.

As American President Donald Trump has struggled to impose his ‘Boss Man’ approach to the presidency on a system of checks and balances he neither understands nor approves of, he has relentlessly and consistently run into court systems that refuse to bow to his off-thecuff whims. Time and time again, federal courts are teaching the new President the rudiments of American civics, and reminding him that he is, rather clearly, bound by rules. Those rules, it turns out, are refereed by the courts.

Trump is by far not the first American First Executive to quarrel with the courts and some – most notably Franklin Roosevelt - have gone to great lengths to try to bend the courts to their political will, with varying degrees of success.

Courts, particularly the Supreme Court, have had a tremendous impact on American society and have greatly contributed to expanding the meaning of civil and human rights and limited the powers of Congress and the President. Recently, it also opened the door to the unlimited influence of money in the electoral system.

Given the important role the courts have come to play in the advancement of political agenda in America’s existential culture war – and the lifetime tenure of Justices – the appointment of Supreme Court Justices is one of the most important – and binding – decisions a President can make. Given the unpredictably of the current president, the age of current justices, and the increasing polarization of the Court along left-right lines, we might eye his potential opportunities with concern.

In Canada, the role of the Supreme Court in defining the kind of society we have committed ourselves to has unfolded in a less dramatic, but equally profound manner.

Since 1982, the Supreme Court of Canada has been the final interpreter of the complicated rules and regulations that define the terms of Canada’s newly adopted Constitution. This adaptation only became possible through complex and at times vague compromises, many of whose ultimate implications would be left to the courts to work out. As result, the meaning of terms like ‘equality,’ ‘reasonable,’ ‘privacy,’ and ‘official bilingualism’ would be decided by jurists on the basis of parliamentary intent and constitutional compliance and with the benefit of contemporary thinking. In the case of the latter in terms of the Charter of Rights and Freedoms Canada’s contract with itself - Court rulings have initiated profound changes in many aspects of social life – and the protection of the more vulnerable among us.

To be fair, Canada is not, like the United States, bound by a 230-year old agreement created in a vastly different time for a vastly different purpose. The American Constitution was not designed to create a powerful federal government, but as a means to find a workable way in which a baker’s dozen small former colonies could work together to defend their common interests. As those interests included the preservation and growth of a feudal slave-owning society and the unbridled proliferation of free-labour capitalism all within the context of a rapidly expanding empire – the Constitution moderating them all was a tricky horse to ride to begin with.

In Canada, the task of the courts, while still complex, is to oversee a much less convoluted federation. In contrast, our federation is designed to create a strong central government with extensive jurisdictions. It controls a single criminal code, and with the exception of Quebec, a Common Civil system as well. National standards are easier to impose legislatively and these in turn help create nationally accepted standards that are only reluctantly accepted locally.

In replacing Justice Mclachlin, Trudeau does not face the kind of political minefield that an American president does in nominating a federal judge. He will be guided by a fairly rigorous vetting system designed to avoid undue political influence in such appointments. He will look for qualities of leadership, above all, in hopes of continuing the tradition of consensus that became a hallmark of Mclachlin’s tenure that added to a sense of certainty that tended to deflate organized opposition.

The most notorious episode of Mclachlin’s term came in the later stages of the Harper Government’s collapse when the Prime Minister somehow thought his cause could be furthered by engaging in a verbal dispute with the Chief Justice for her attempt to advise the government that the path it was on was constitutionally untenable. Like many of Mr. Harper’s last-minute blasts of desperation, it failed miserably and only increased the reputation of the Chief, who had long urged a closer cooperation between the courts and the government in terms of constitutionally questionable legislation. This attitude allowed, for example, the institution f the practice that allows governments grace time to amend laws the courts found objectionable without invalidating them immediately.

A final advantage that Canadian Prime Ministers have in guiding their judicial choices is the habit of Canadian Justices to retire before it becomes mandatory while they remain active, lucid, and capable of offering insights from which few American presidents can benefit. This also allows for smoother generational shifts as changing ideas filter through a changing society.

Constitutions are meant to be living documents and to reflect the times and thinking in which they function. They are also meant to reflect underlying principles in which these changes are designed to unfold. So far, we’re doing pretty well.