Brian Dijkema: I defended the courts. I no longer trust them

The courts are about as reliable and predictable as any political player in our country, which is to say, not at all.

By: Brian Dijkema

In ancient times, when I was a graduate student studying political and legal theory in Toronto, there were those among my peers whose favourite thing to do was to worry about the judiciary.

The concern was the possibility latent in our new constitution of supreme court judges acting as legislators, rather than adjudicators of the law (for the kids, I’ll remind you that I am the same age as the repatriated constitution; in the early aughts, that’s still new).

If that other bugaboo of our governmental system, the Senate, was unelected, and unequal, at least there was the consolation that it was ineffective. Not so the Supreme Court of Canada; their decisions are final, no appeals. And if you care about the rule of law, as I do, you can’t just ignore these decisions without risking punishment or significant upheaval in the body politic. Trust in the political system is critical to a functioning democracy; and trust in the nation’s highest court to render justice is a cornerstone of that.

My response to my chicken-little friends at the time was to counsel just that: trust.

Today, I wouldn’t offer that same advice. The facts have changed. And I think I was wrong.

It was a risky stand for me to take even then, I admit. Already at the time there were indications that the SCC was ignoring the “natural limits” that prevented the so-called “living tree” of constitutional interpretation to grow feral and overshade the legislatures. We had not yet come to appreciate justice Beverly McLachlin’s interpretation of that debatable doctrine, in her own image, when she said that “our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” (My emphasis)

Despite this, I still counselled trust and patience, and I had good reasons and good evidence for doing so. There was the court’s decision in the Rodriguez case to uphold criminal code provisions which prevented doctors from killing willing patients, even in the face of pressure to do otherwise, was one example. Another was the Court’s decision in 2001 to ensure that students of Trinity Western University, a Christian university who held a minority view on sexuality and whose students were required to abide by a code of conduct shaped by that view, were not discriminated against by the B.C. College of Teachers on the basis of those beliefs. The court required the B.C. College of Teachers — an administrative body created and authorized by the province — to certify TWU’s teacher’s college.

I’d say to my friends: “Look, you might not like some of the court’s decisions, and there’s reason to be concerned, but if they can uphold the fact that killing is murder even if it’s willed by the victim, and if they can uphold religious freedom in the face of tremendous social and institutional pressure from the state, we can lower the temperature on our worries. We can trust the courts.” People called me naive at the time, but the truth is that I had the evidence to back up my call to trust the courts.

But then came the case of TWU wanting to start a law school, and its opposition by an almost identical set of state-created and -authorized administrative bodies, the law societies. The cases were almost identical in the facts: no actual discrimination, and a state-authorized body looking to prevent a non-state school from recognition on the basis of religious belief. In this case, the SCC acknowledged that the law societies were violating religious freedom, acknowledged the general impropriety of the state discriminating on the basis of religion against private actors and then … said go ahead and discriminate. No law school for TWU.

And lest you do a quick Google search and discover I’m a Christian, and then dismiss this whole article, it wasn’t just religious people who were befuddled. A University of Ottawa law professor, Dr. Carrisima Mathen (now an Ontario Superior Court Judge), described the majority decision as a “word salad.” She was not alone among her peers. There was a minority report, which actually respected precedent, and which acknowledged that the point of the SCC was to protect citizens from state discrimination, but they lost that vote. And Canada lost a law school that almost certainly would have given a bit of diversity to our generally conformist (and judging by the Law Societies’ action, authoritarian-curious) legal community.

Similarly with the Carter decision, the right to life suddenly and miraculously included the right to have a medical professional kill you if you wanted it without criminal sanctions.

What happened between Rodriguez and Carter? Not sure. Nobody knows.

In both cases the courts twisted themselves into pretzels to reach the decision they wanted, entirely contrary to their own precedents.

And now I, like many others, find myself in a place where I no longer trust the SCC to deliver justice. I have no idea how they will come to their decisions, seeing as the former guidepost of precedent appears to no longer matter much. The rise of such things as “charter values” and McLachlin’s doctrine of “progressive interpretation” now appears to be the dominant lens. Both those things — “values” and “progressivism” — are both extremely vague and seem to belong properly in the sphere of politics, where we can ask questions of people who are accountable to answer them.

This is a massive loss and it shakes me even now to know that the courts are about as reliable and predictable as any political player in our country, which is to say, not at all.

I’ve seen among the chatterati suggestions that I am now the chicken little that I thought my friends were in the early aughts; that all of these concerns are just an overreaction and everything will be okay. As someone who used to say exactly this, I get it.

But the facts have changed, and I’ve updated my priors. I no longer have confidence that I can point to actual decisions, and the actual behaviour of the court, to support calls for trust. I’m open to hearing evidence, but I haven’t seen it.

It’s now the case in Canada that those who desire a legal system that provides the public with clarity and predictability in its decision making face a court which has removed the rails of precedent that guarded against arbitrary judgement. It’s still possible, of course, to point to cases where the SCC follows precedent. But it’s also now possible to point to cases where it doesn’t. And nobody but the judges knows when it’s going to follow precedent, or when it’s going to make stuff up.

Arbitrariness, whether it’s parents, teachers, politicians or judges, inherently and unavoidably undermines trust. It’s like a water leak under a road; you might not notice it for a long time, but suddenly, a sinkhole opens, and what appeared to be a solid structure is now a disaster.

A short word to my progressive friends who are happy with a court that interprets the law by way of “progressive interpretation to accommodate and address the realities of the modern life.” Let me say this: modern life is not predictable; and history is littered with examples of those who, while deemed to be progressive in their day, are now seen to be monsters. It all seems hunky dorey now, when the court seems stacked with “your people,” when we live in a Canadian legal environment that tends to have structural preferences for a particular political vision, and which seems intent on cutting off alternative schools of thought through hiring practices and opposition to new law schools which operate out of different worldviews.

But we have plenty of evidence, just from looking south of the border, that the wheel of political and cultural fortune turns. We don’t know what will happen in the future. However unlikely it seems now, it’s plausible that at some point, the courts could have a political bias that goes against your preferred understanding of what is “progressive.” And what then?

There will be no way you will be seen as consistent in your desire for fair treatment when you complain.

To be clear, I think this scenario, however unlikely it seems in the current Canadian context, would also be bad. We need to find a way to rebuild trust in the courts which many Canadians, including myself, have lost. Section 33, the Notwithstanding Clause, which provides a check on judges acting politically (and, as we see in TWU, acting against minority positions), is essential to that process. The federal government seems determined to find a way to limit or curtail the ability of provinces to use it.

That would be wrong. More to the point, it would be a disaster for already waning public confidence in our legal system. Section 33 is not just a superfluous piece of constitutional lumber. It’s not an appendix. It’s a key structural beam that supports the entire system. And if it’s knocked out, it will be a disaster for the house of Canadian law, politics, and society.

Call this an “overreaction” if you want. But to my knowledge, this is the best understanding of the actual evidence, not what we wish the evidence to be.

Brian Dijkema is president of Cardus Canada.

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