Matt Thompson

Last October, Prime Minister Stephen Harper nominated Judge Richard Wagner of the Quebec Court of Appeal to the Supreme Court of Canada. If this is the first you’ve heard of it, you are not alone.

On the day that Justice Wagner’s predecessor, Marie Deschamps, announced her retirement, the story was not reported until the middle of CBC’s “The National” broadcast that evening. It was not covered in a two- to three-minute segment by a reporter in the field, but in a fifteen-second Peter Mansbridge sound-bite. No one was asked to comment about Justice Deschamps’s judicial legacy or to speculate about potential replacements, and if you were to have missed the broadcast that night, or gotten up to brush your teeth during those fifteen seconds, you would have sworn that it never happened.

I can think of no other event with such profound, wide-ranging policy implications for the country that flies so consistently under the national radar as the replacement of a Supreme Court judge.

First, a word about judges and policy-making: as we all know, judges are not appointed to set public policy, and most assiduously avoid the appearance of doing so. They are appointed, instead, to resolve disputes between individuals, and between individuals and the state. But, in exercising their dispute resolution function, judges are frequently called upon to interpret the meaning of legislation, and to determine whether it accords with the constitution. Because appellate-level court decisions are binding on governments and lower courts, judges’ interpretations of legislation and the constitution effectively become part of the texts themselves.

It is in this way that judges exert their influence in the policy process. Last year alone the Supreme Court dramatically changed the patent application process; upheld federal election results in an Ontario riding where fraud was alleged; and clarified the circumstances under which individuals with HIV are required to disclose their illness to sexual partners.  Two years ago, the Conservative government sought to establish a national securities regulator as one of the cornerstones of its economic agenda; it failed because the Supreme Court found such a move unconstitutional. Because of past Supreme Court decisions, today women can obtain abortions, Quebec cannot unilaterally secede from Canada, and employers cannot stop workers from bargaining collectively.

And it isn’t just Supreme Court judges who have an impact. In recent years, Ontario appellate and trial judges have struck down the nation’s prostitution laws, ordered the Occupy protesters out of public spaces, and most recently, ordered the sitting mayor of Toronto to vacate his office. Judges might not be appointed to set public policy, but make no mistake: they absolutely affect it, and often dramatically.

Nevertheless, for most Canadians, including most in the policy community, the replacement of a Supreme Court justice is a non-event. And while this frankly astounds me, I’m not certain that it’s a bad thing.

Some would argue that the silence around Supreme Court appointments is healthy because it is a sign of stability. Our current Chief Justice, Beverley McLachlin, has indeed run the opposite of what would be considered an ‘activist’ Supreme Court. Her court tends to produce cautious, narrowly calibrated judgments, which are designed to foster consensus and avoid conflict with the government of the day. Perhaps at no other time in its history has the court attracted as little controversy as over McLachlin’s 13-year tenure. This is positive because it points to broad public acceptance of the court’s legitimacy, which, as we know, is the Holy Grail for the unelected. It is positive as well because it suggests that a much less politicized culture surrounds judicial appointments in Canada than in the United States, where a Supreme Court confirmation hearing is a made-for-TV miniseries and appointments to appellate courts can, and often are, filibustered by Congress for purely political reasons.

Unlike the situation in the U.S., most of Canada’s charged ideological battles are behind it, and Canadians generally have faith that their judicial system is competent, impartial and functioning properly—or so the ‘rose coloured glasses’ thinking goes.

But there is another, more depressing explanation for the trend: Canadians tend not to notice when Supreme Court judges are replaced because they don’t understand or they don’t care.

On the surface, there are various reasons for Canadians to be apathetic. One is that citizens are utterly excluded from the judicial selection process. Neither Canadians themselves (through elections) nor their members of parliament (through parliamentary committees) have the power to select or to derail the appointment of a Supreme Court judge. It is a prime ministerial prerogative and always has been. Moreover, the process is conducted almost entirely in the dark. Nominated judges traditionally do not answer questions or appear in public before taking their seat on the bench. In recent years, though, the Harper government has taken some steps to opening the door, if only a crack: Justice Wagner (and Justices Rothstein, Moldaver and Karakatsanis before him) appeared before an ad hoc parliamentary committee to answer questions. Granted, he only appeared for half a day, the questions were of the “…tell me about your legal philosophy…” and “let’s get to know each other better” variety, and the ad hoc committee had no authority to stop his appointment, but progress is progress.

Another reason is the impenetrable quality of most written decisions. Whereas elected officials give speeches to the general public using language and narratives that it can identify with, judges do not. When writing a judgment, a judge’s audience consists primarily of the specific parties before them and the broader legal community—individuals with a working knowledge of the salient issues and vocabulary at play in a case. The general public is welcome to read judicial decisions and is encouraged to do so, but these documents are not written for them—they do not make for easy bedtime reading.

There are, of course, other possibilities: the proliferation of technology has eroded our attention span and made everybody less interested in everything; the media is to blame for focusing on more trivial items; and, perhaps most troubling, there is a broader civic disengagement in the country at work, a trend similarly manifested in dwindling voter turnout.

I happen to think that some combination of the above reasons is to blame, which is why I see both good and bad.

On one hand, silence does seem to be a symptom of stability. It is probably a good thing that judges aren’t household names in Canada, and it is most assuredly a good thing that they aren’t forced to run for office (a lingering abomination in some parts of the U.S.), because their relative anonymity permits them to focus single-mindedly on their job: to decide cases correctly. And the primary reason that prime ministers continue to get away with monopolizing the appointments process is because they tend to perform the task commendably. Much has been written over the years about Stephen Harper’s true (or ‘hidden’) policy agenda, but it’s worth noting that he has now had five opportunities to exercise his most unassailable policy authority—to appoint Supreme Court justices—and on each occasion he has chosen well-regarded judicial moderates.

On the other hand, the deafening silence from the media, the policy community and the general public seems to point to a broader disengagement or alienation from the judicial process that is troubling—troubling because the court can, and often does, dramatically affect peoples’ lives. Ideally, people should understand this without having to retain the costly services of a lawyer.

As mentioned, I’m undecided about whether, on balance, the silence is good or bad, but one thing I am for sure is amazed—amazed that in one of the most prosperous, educated, developed democracies in the world, a judge was appointed to the highest court in the land and barely anyone seemed to notice.

Matt Thompson is a 2014 Master of Public Policy Candidate at the School of Public Policy and Governance. He has also received a Bachelor of Laws from Dalhousie University, and is a Member of the Law Society of Upper Canada. He previously practiced corporate and commercial litigation with a national firm in Toronto.