Politicizing the Judiciary

Israel is currently locked in an intense struggle between conservatives and progressives over the Netanyahu government’s judicial reform plans. As it now stands, the top court can strike down any […]
Published on August 28, 2023

Israel is currently locked in an intense struggle between conservatives and progressives over the Netanyahu government’s judicial reform plans.

As it now stands, the top court can strike down any law that it considers to be “unreasonable”. Those judges are all progressives. What they consider “unreasonable” can seem perfectly reasonable to conservative legislators. The result is that the high court can strike down the very laws Israelis elected representatives to pass. Netanyahu believes that unless he succeeds in changing what he sees as judicial autocracy, the roughly half the country who are conservatives will never be able to effectively govern – whether or not they form the government.

We don’t have that “reasonableness” clause in Canada, but, as the National Post series about judges donating to the Liberal Party highlights, we are well on our way to a politicized court that does not represent the roughly half the country that is conservative.

The series, called “Donating Judges,” reported that 76.3% of the lawyers appointed to federal courts since 2015, when the Trudeau Liberals came to power, had donated to the Liberal Party of Canada. In addition, the number who had donated to the NDP Party since the Liberals and NDP formed their alliance rose sharply. Most shocking, some appointees to federal courts, boards and tribunals since 2015 continued to contribute to the Liberal Party after their appointment.

Meanwhile, the number of Conservative appointees nosedived after 2015.

New revelations in Part 3 of the National Post series that either applicants, sitting judges – or both – attended expensive Liberal Party fund-raising events at swank places, like Ottawa’s Laurier Club, add to the serious concerns about the politicization of the federal judiciary.

All of this is symptomatic of the steady deterioration of that healthy mix of progressive and conservative voices that always characterized Canada’s judiciary since 1867. The complete failure of almost all of the court challenges alleging government overreach during the pandemic is a dramatic illustration of how completely our courts have succumbed to the progressive viewpoint, and how hostile they now are to conservative views.

During the pandemic in the United States, on the other hand, there were a mix of judicial opinions -some on the conservative side, emphasizing the protection of civil liberties, and others on the progressive side, emphasizing public health. Not so in Canada. In almost every case, the protection of civil liberties gave way to an almost complete deference to decisions made by public health officials.

This disparity became glaringly obvious when the Chief Justice made his remarks about the convoy protest. He clearly saw the protestors and their supporters in a very bad light, and seemed to dismiss concerns about government overreach – thus, appearing to prejudge future Canadian lockdown court challenges. Ominously, he adopted a dark tone similar to the one used by the Prime Minister in his infamous remarks about “racists and misogynists”. In an odd twist, the former Chief Justice, Beverly McLachlan, then chose to weigh in from Communist China’s Hong Kong with the same message.

While the progressive half of the country would hear those remarks, and agree with them, the conservative half of the country – with concerns about vaccine mandates they regarded as political, and lockdown measures they believed arbitrarily took away civil liberties – saw them as deeply insulting. They would note that the Chief Justice had never spoken publicly about troublemakers in protests that progressives broadly supported, such as the Wet’suwet’en or BLM protests.

So why would he enter the public arena only to condemn a conservative protest against government overreach? After all, any large protest – of the left or right – attracts troublemakers and opportunists. But the overwhelming majority of people supporting the spirit of the protests – be they BLM or convoy supporters – are peaceful citizens with an opinion they feel the need to voice.

These judges see the world in progressive, or woke terms. What they are saying makes perfect sense to them. But roughly half the population sees things differently, and Canada has been such a successful country precisely because we have always had that healthy mix of opinions. Liberal and Conservative battles have been sharp and fierce, but it has been those two forces rubbing up against each other that have shaped this country. The composition of the courts has always reflected that diversity of viewpoint.

Unfortunately, the donation issue now being examined by the National Post is just symptomatic of a trend that has accelerated sharply since 2015 – the politicization of the judiciary. New bilingual requirements will make it even more difficult for western conservatives to be appointed to our top court.

While the party in power has always chosen to appoint mainly those who tend to agree with their view, prior to 2015 Canada’s judiciary always had a rough balance of progressives and conservatives. Our leaders recognized the importance of maintaining that healthy mix. That changed in 2015, and it is largely gone now in our top courts, and in our increasingly powerful boards and tribunals.

The rule of law depends upon respect for the courts. That respect cannot be maintained if the courts are seen as reflecting only one point of view. Liberal Party progressives now dominate to an unhealthy degree. Expecting donations from potential appointees is just a particularly troubling sign of this malaise. Because, contrary to the current fad of focussing on skin colour or sexual preferences and calling it “diversity”, it is the diversity of opinion that really matters. That is the diversity that makes for both a successful democracy, and respect for the courts. Attempting to manipulate that by silencing or excluding conservatives – which is exactly what the Trudeau Liberals have been doing since 2015 – is an ultimately disastrous policy.

So, how will this work out? There is no short term solution, and the current ideological government will not change course. But perhaps future governments will see this very real threat to the rule of law, and begin to correct it. Canadian courts are now representative of half the population, and dismissive, – or even hostile – to the other half. This cannot stand.

On the donation issue there will probably be some kind of investigation. If it is true that some of the federally appointed judges and board appointees have actually continued to make donations to the Liberal party after their appointment – and the party has knowingly accepted those donations – there will probably be some remedial measures taken. But unless significant steps are taken by wiser governments to restore that healthy mix of progressives and conservatives our courts need to retain the respect of all citizens – our courts will divide, rather than unite us.

 

Brian Giesbrecht, retired judge, is a Senior Fellow at the Frontier Centre for Public Policy

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