By Stéphane Sérafin and Kerry Sun
The chief justice of Canada, Richard Wagner, has again made
for his extrajudicial pronouncements. Responding to a question about U.S. President Donald Trump on June 10, Chief Justice Wagner
during his now-annual press conference that “there is no doubt that the rule of law and judicial independence are under attack in many countries,” adding that, “when you see governments attacking the media, attacking the judges, attacking the lawyers and universities … there’s a good chance that you’re in front of a dictatorship.”
Chief Justice Wagner’s remarks echo a similar
, issued last month, by the chief justices of Ontario’s Court of Appeal, Superior Court, and Court of Justice, ostensibly in response to Ontario Premier Doug Ford’s criticism of recent judicial decisions. In that statement, the three Ontario Chief Justices wrote that the principle of judicial independence meant that “a judicial official must be, and must be seen to be, free to decide each case on its own merits, without interference or influence of any kind from any source, including politicians.”
These remarks are unobjectionable if simply meant to reaffirm the judiciary’s important and unique role within Canada’s constitutional order. As with the other branches of the state — the legislative and the executive — the judiciary is allocated certain responsibilities under our system of government. For judicial power to be discharged prudently, judges should be free from undue interference from the other branches.
However, some commentators in the legal community appear to have interpreted these remarks not as a reminder of the judiciary’s constitutional role, but as a warning to elected officials who criticize judicial rulings.
This interpretation is unfortunate. It would be a mistake to equate judicial independence with judicial immunity from criticism, and the rule of law with rule by judges. Such a view is untenable, particularly if one accepts that judges, like all public officials, are fallible human beings whose decisions are never above reproach. Nor is this view compatible with the place of judicial action within Canada’s constitution.
Indeed, the legitimacy of judicial review has traditionally been supported in Canada and elsewhere by the contention that judges are able to offer compelling reasons in support of their decisions. Crucially, those reasons have never been held to be beyond criticism. Even the judgments of our highest court, the Supreme Court of Canada, have been subject to trenchant critique for as long as this country has had legal scholars and commentators. Judicial power is official power, and its exercise must be subject to public scrutiny — as is the case with the decisions of elected officials.
If legal commentators are permitted to scrutinize the reasoning of judges, then it is entirely legitimate for elected officials to do so, as well. After all, the rule of law mandates that each branch of the state remains within its allocated bounds. Where a court exceeds its proper constitutional role, or is in danger of doing so, then elected officials have a right, and a constitutional duty, to contest these uses of official power.
Consider the case that provoked Premier Ford’s comments, which involved a court challenge to his government’s decision to remove bike lanes in some Toronto neighbourhoods. Whether or not their removal was appropriate, it is hard to conceive of bike lanes as a “fundamental right” contemplated by the framers of the Charter of Rights and Freedoms. At best, the question is one of urban planning: a dispute over transit infrastructure, about which reasonable people can disagree. It is entirely consistent with Canada’s constitutional order that these questions of policy should be left to the politically accountable government of Ontario. In discharging its unique constitutional role in our democracy, Queen’s Park is entitled to assert its priorities over those of cycling advocates.
Unfortunately, none of these considerations prevented Justice Paul Schabas of the Superior Court of Ontario from
a preliminary injunction, effectively stopping the government from implementing its priorities. In so doing, Justice Schabas summarily dismissed the elected branches’ constitutional function, asserting that “the government does not have a monopoly on the public interest.” Instead, the learned judge contended, it was for the court to exercise its own judgment as to which public interests the government could and could not pursue.
Next, consider the numerous cases in which Canadian courts have struck down mandatory minimum sentences as unconstitutional, or departed significantly from public sentiment in sentencing criminal offenders. In one emblematic case, the Supreme Court of Canada
a six-month mandatory minimum for child luring to be “cruel and unusual punishment” contrary to the Charter, claiming that it would “shock the conscience of an informed public.” More recently, the Provincial Court of British Columbia has been criticized for a
to impose no jail time upon an offender who possessed what the court characterized as a “relatively modest” collection of child pornography. In these circumstances, it is entirely unsurprising that officials and informed citizens should raise questions about the intelligent exercise of judicial power.
A constitutional democracy that prizes our courts as forums of reason cannot have it both ways. It cannot profess public confidence in the judiciary, while insisting that judicial decisions be shielded from public criticism. Central to judicial responsibility is the task of offering reasoned justifications for one’s decisions. Those reasons are an invitation to the public to examine and critically appraise the cogency of a judge’s decision-making.
There is little reason to think, then, that elected officials are acting inappropriately, much less unconstitutionally, in expressing reasoned disagreement with judicial rulings, or in proposing solutions to perceived problems with those decisions. To the contrary, such criticism is precisely what the rule of law requires, and bearing it with composure is a constitutional duty of the judicial role.
National Post
Stéphane Sérafin is a senior fellow at the Macdonald-Laurier Institute and an assistant professor at the University of Ottawa’s Faculty of Law. Kerry Sun is a doctoral student at Merton College, Oxford and a Fortescue Scholar with the Canterbury Institute.
