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The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)
The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)

Emmett Macfarlane

Secular Charter case shows Supreme Court judges can be ideological – and wrong Add to ...

A number of legal commentators have expressed dismay at the reports that former Supreme Court justice Claire L’Heureux-Dubé has signed a petition in support of the much-maligned Charter of Quebec Values, a highly problematic law that, if passed, would prohibit public servants from wearing “overt” religious clothing or symbols at work.

The bill effectively targets visible minorities, who are more likely to wear “overt” religious garb like turbans or head scarves, and so it is a prime example of systemic discrimination. The law is plainly unconstitutional. That a former Supreme Court judge would support such an obviously defective law is disheartening in itself, but that is not the only reason to be concerned about Ms. L’Heureux-Dubé’s public support for it. Had a sitting judge signed the petition there would be little doubt about the problem: by articulating a political position on an issue that may come before the Court, a judge would be tainting his or her claim to neutrality.

Whether it is problematic for a retired judge to involve herself in political activity is much less clear. In the modern era, a retired Supreme Court judge would be unlikely to enter partisan politics, but a number have gone on to other public roles, including Louise Arbour’s stint as the United Nations High Commissioner for Human Rights and Frank Iacobucci’s role on various commissions of inquiry. Retired judges also routinely sit on the boards of directors of various corporations or take up positions with law firms. None of these are considered inappropriate, but it is rare to see a retired judge sign a petition regarding a controversial public policy.

Yet in another fundamental way, L’Heureux-Dubé’s foray into a political issue is a good thing, because it helps expose the general myth that some in the legal profession continue to cling to: that judging – even as it applies to something as value-laden as rights – is not political. It is a myth Ms. L’Heureux-Dubé herself helped propagate when she was interviewed before the House of Commons standing committee on justice in 2004, which was examining reform to the Supreme Court appointments process. Asked about the role ideology might play in judging, L’Heureux-Dubé stated: “We talk about ideology, but very few of us [judges] have any. You may not perceive that, but we look at a case by first reading and knowing the facts and then reading the briefs, and then we make up our minds.”

A generous interpretation of these comments would not take them as literal – everyone has an ideology, it is what allows us to make sense of the world around us – but rather as a suggestion that judges can simply separate themselves from ideology and apply the law (as a thing somehow autonomous from politics) in an objective fashion. But would anyone seriously believe that if Ms. L’Heureux-Dubé were on the Court today she would refrain from upholding the Quebec Values Charter as constitutional?

It sometimes appears that judges would like to have their constitutional cake and eat it too. By supporting the notion that courts can reach the “correct” answer on where broad constitutional phrases like “freedom of expression” begin and end – often settling controversies about which reasonable people might reasonably disagree – by somehow detaching themselves from their political ideology, we are presented with a caricature of judges as infallible oracles.

As I explore in my book Governing from the Bench: The Supreme Court of Canada and the Judicial Role on the Supreme Court, judging is distinct from normal political decision-making, but not because politics plays no role. We need an impartial judiciary to settle disputes between governments, and between governments and rights-bearing citizens. And there are a host of institutional factors that help ensure judging is done in a principled fashion. But it is fundamental for basic civic literacy and for a healthy democratic society to recognize that the law, especially when it comes to rights, cannot be separated from politics.

In some respects, Ms. L’Heureux-Dubé’s political activity underscores the extent to which judges and the legal profession sometimes treat judicial independence as if it were a one-way street. Judicial independence is intended to immunize courts from the pressures and ugly influences of everyday grubby politics, or from allowing partisan or personal interests to infiltrate and bias decision-making. But it has been extended in absurd ways, including a Supreme Court decision that determined how judges’ salaries are set.

In 2011, immigration minister Jason Kenney criticized Federal Court judges for a pattern of decision-making that he felt undermined the government’s immigration policies. After the Canadian Bar Association wrote a letter of protest, Chief Justice Beverley McLachlin weighed in during a speech: “I was certainly – and I think all judges were – very pleased when an issue arose earlier this year when a minister of the Crown seemed to suggest that some judges were insufficiently solicitous to government policy. We were very, very gratified to see your president writing a powerful public letter to the minister in question, reminding the minister of the importance of public confidence in an impartial judiciary, that bases its decisions on the law and not on government policy.”

It is true that attacks on the integrity or character of judges from political actors would be unseemly and highly problematic. But to suggest that any criticism from elected representatives directed at courts, especially those focused on the reasoning and decisions rendered, is verboten, displays a rather extreme conception of judicial independence and, it is worth noting, an apparent sensitivity to any public recognition of the basic fact that courts can sometimes get it wrong. This is a very unhealthy yet pervasive attitude, and it has only encouraged our elected representatives to leave all manner of difficult policy or moral questions to courts instead of democratic politics.

It is in helping to uncover this broader picture that Ms. L’Heureux-Dubé does us all a favor, for her support of the Quebec values charter is not only proof that judges can be wrong, but is also proof they can be political as well.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role was published this year by UBC Press.

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