Politicians, not Supreme Court justices, need to engage with the public

This September, all nine Supreme Court of Canada Justices will leave Ottawa and travel to Winnipeg to hear two cases.  While in Winnipeg, the Court will also hold a large public event, and meet with various groups.

In a video announcement, Chief Justice Richard Wagner declared: “It’s important for us to be more accessible to all Canadians, because the Supreme Court is your Court. … This will be an opportunity for more Canadians to see the Court at work, live, right in front of them. We’re very excited to go to Winnipeg, and to welcome Manitobans into their Court.”

Access to justice is a serious problem in Canada.  With courts taking years to decide most civil cases, and with slow-moving criminal cases inflicting prolonged suffering on victims of crime and on accused persons, this is a problem in need of immediate action.  Unfortunately, the Supreme Court hearing two cases in Winnipeg rather than in Ottawa won’t do anything to solve this serious and long-standing problem.

Then again, the Chief Justice did not direct his comment at access to justice, but at access to himself and his colleagues.

While hearing two cases in Winnipeg rather than Ottawa is a friendly gesture, the Court’s choice of which groups to meet with – and not meet with – in Winnipeg is necessarily a political choice.  If you thought the Court would meet with Ukrainians and Germans (Manitoba’s two largest non-English ethnic communities), prisoners, seniors, taxpayer groups and English language rights activists opposed to official bilingualism, you would be wrong.

In fact, the Court has announced that it will meet with “indigenous communities, the francophone community, the legal community, and students.”  What message does this send to the Canadian public, which wants an impartial court deciding on aboriginal claims?  What does meeting with the francophone community in Winnipeg say in relation to the Court hearing a case about minority language educational rights?  And what if university tuition payments were at the heart of a case that came before the SCC, with its Justices having met only with students, but not with taxpayers?

As Canadians, the Supreme Court judges already interact with the public in their private lives, in Ottawa and elsewhere.  One could reasonably assume that the nine lawyers appointed to this Court each meet individually with various people regularly, on the basis of friendship, shared interests, or family obligations.  The people with whom any one judge meets over the course of a year would likely not form a perfect microcosm of Canadian society, in terms of race, religion, political views, income, and level of education.  This is to be expected, and there is nothing wrong with it, because the personal connections formed by any one judge are not publicly endorsed by the Court.  Not so for these meetings of “the Court” as a whole in Winnipeg, which is what makes the Court’s exclusion of many groups worrisome.

Chief Justice Wagner would no doubt respond to the above by saying that he and his colleagues will do their very best to decide all cases impartially, regardless of which groups they chose to meet with (and not meet with) in Winnipeg.  And he would be right.

But that doesn’t solve the problem.  The Court has made a political decision to meet with francophones, not English language rights activists; lawyers not prisoners; students not seniors; aboriginals not Germans or Ukrainians.  In view of the ancient and centrally important legal maxim, “Not only must justice be done; justice must be seen to be done,” the Court should not be making these political decisions in the first place, in order to avoid even the appearance of possible bias.

And what about the Court’s one “large, public event” in Winnipeg?  This event will not raise concerns about possible bias, so it’s an improvement over the political choice to meet with select groups.  However, given that the Court’s job is to hear cases and weigh the merits of competing legal arguments, it’s not clear how the Court’s work will be improved after its nine judges have shaken the hands of many Manitobans (or Maritimers, Albertans, Quebecers, etc.).

The job of a politician includes being accessible to constituents.  For premiers, prime ministers and cabinet ministers, this duty extends even further to being accessible to the public at large. Politicians should not be insulated from the people they represent, and to whom they are accountable.

In contrast, judges do not represent any geographical constituency or interest group.  Judges are appointed to rule impartially, according to law and not based on the preferences of any particular groups, or even the preferences of Canadians as a whole.  Judges do not “represent” anyone, nor should they.

As part of facilitating an accessible court process that Canadians can observe and familiarize themselves with, the Court appropriately posts its judgments and video-recordings of its proceedings on its website.  But for judges to go out of their way to meet with the public at large, and with select groups, is as out of place as Parliament holding votes on important Supreme Court cases.

For MPs to vote on whether a particular Supreme Court Case should be decided one way or another would be inappropriate, simply because it is not Parliament’s job.  The fact that such votes would be entirely non-binding, and likely not harmful, does not change the fact that Parliament would be spending time and energy on something that is clearly outside of its mandate.  Likewise, Chief Justice Wagner and his colleagues should not spend their limited time and precious energy on becoming “accessible” to the public.  Such exercises in democratic populism, even if only symbolic, diminish the dignity of our Supreme Court.

Lawyer John Carpay is President of the Justice Centre for Constitutional Freedoms (JCCF.ca).