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. President Benjamin 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.
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 was 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.
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—would see them as deeply insulting. They would note that Wagner 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 political 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.
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 focusing 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.
However, unless significant steps are taken by wiser governments to restore that healthy mix of progressives and conservatives that our courts need to retain the respect of all citizens, our courts will divide us rather than unite us.
