A majority of judges lean towards the Trudeau side

Do the judges appointed by Justin Trudeau since 2016 tend to produce “Trudeauist” judgments?

An ambitious research commissioned by The Journal and led by law professor Guillaume Rousseau, of the University of Sherbrooke, answers in the affirmative. He presents his method and his conclusions in a recently launched book published by the Institut de recherche sur du Québec. Among the 29 judgments analyzed, written by the Supreme Court and the Court of Appeal, a clear majority of 58.6% turns out to be “consistent” with the Trudeau thinking (common to father Pierre Elliott and son Justin).

Some will consider that this is a matter of proving the obvious, the repatriation coup, carried out in 1982 by Trudeau senior, having made it possible to inoculate “Trudeauism” into the Constitution.

Others will criticize the questioning by recalling that judges exercise their power independently of those who appoint them. Rousseau’s research also concludes that a certain number of judgments, 17.2%, are “clearly non-compliant” with Trudeau’s thinking.

Scandals

Nevertheless, after the multiple scandals linked to judicial appointments which, since his coming to power in 2015, have punctuated the mandates of Trudeau’s son, the question was necessary.

In the introduction to his study, M^e Rousseau – who also acted as lawyer for the Quebec Secular Movement in the case concerning the challenge to Bill 21 – recalls that several journalistic investigations have demonstrated over the past 10 years liberal political interference in judicial appointments.

• Listen to the political meeting between Antoine Robitaille and Benoît Dutrizac via QUB :

For example, those of Globe and Mail and Radio-Canada on the use of the “liberalist”, the PLC’s private database making it possible to “measure the degree of loyalty” to the PLC of candidates for the judiciary. The government has promised in 2021 to stop using this filter.

Other texts, such as an investigation by Newspaper, in 2021, demonstrated that Minister Diane Lebouthillier appointed the partner of one of the contributors to her electoral fund while another candidate had obtained a more favorable recommendation. The Press and the National Post also documented strong partisan influences in the appointments process.

CTV and The Canadian Press revealed, in 2019, that the Prime Minister had blocked an appointment to the Supreme Court, that of Manitoba judge Glenn Joyal, although it was recommended by a committee and by Justice Minister Jody Wilson Raybould. In Justin Trudeau’s eyes, Joyal “was too little in favor of a liberal approach to the interpretation of individual rights under the Charter.”

According to experts, the Trudeau government’s search for ideologically compatible candidates partly explains Ottawa’s extreme slowness in appointing new judges. Slowness denounced by a unanimous motion from the Quebec National Assembly on February 21.

Note that it is in matters of individual rights that the judgments (17 among the 29 dissected by Rousseau) tend to be the most consistent with Trudeauism.

DEFINING “TRUDEAUISM”

To carry out the analysis of the judgments, Guillaume Rousseau forged a rigorous and quantitative method, so that if it were taken up by another researcher, the latter “would arrive at the same results”.

It was necessary to define Trudeauism (that common to father and son) in a way allowing it to be detected in each of the judgments analyzed. Rousseau did this by synthesizing the work of several experts (political scientists, jurists and philosophers) who identified its components.

He comes to the following characterization. Trudeauism is “favorable to symmetrical bilingualism, multiculturalism, individual rights, a strong central state and judicial power, but unfavorable to a constitutional veto for Quebec and to a constitutional reform which would give it more autonomy” .

The son is undeniably the father’s successor, with a few differences: his multiculturalism is more focused on religion; its conception of linguistic rights takes into account the First Nations and timidly opens a door to increased protection of French in Quebec.

DUPLESSIS CONTREDITED?

The 29 judgments analyzed by Rousseau were written by magistrates appointed by the Trudeau government to the Quebec Court of Appeal and the Supreme Court between November 4, 2015 (accession of Trudeau Jr. to the post of PM) and November 1^er April 2023.

These are so-called “substantive” judgments, in two main areas. Firstly, rights and freedoms (notably linguistic); then, the sharing of skills (who does what in the federation) and constituent power (how to modify the Constitution).

In this last category, for the period analyzed, the results tend to invalidate the famous maxim attributed to Maurice Duplessis according to which the superior courts are “like the Tower of Pisa, they always lean towards the same side”, that of centralization. Among the judgments analyzed by Rousseau, 42.9% appear to be consistent with Trudeau’s thinking (therefore opting for a centralizing vision), while 50% are not consistent with Trudeauism and 7.1% are “neutral”. In sum, 57.1% of judgments do not favor centralization.

At the time when Duplessis used this maxim, “it could be justified”, specifies the lawyer in an interview. In the judgments of the 1980s on the patriation of the Constitution too. “But indeed, in our sample which only concerns judgments rendered by judges appointed by Justin Trudeau, it seems less systematic in terms of sharing of skills and constituent power.”

• Guillaume Rousseau’s book is entitled: The thoughts of the Trudeaus, Quebec and the judicial power. Realistic and political analysis of judgments rendered by judges appointed by Justin Trudeau’s government. Preface by constitutionalist Daniel Turp. Publisher: Institute for Research on Quebec, 2024.
• The book is available online here.
• Guillaume Rousseau is also a collaborator at Montreal Journal and at Quebec Journal.

PROFESSOR ROUSSEAU ANALYZED:

of which:

• 9 Supreme Court judgments;
• 20 judgments from the Quebec Court of Appeal;

Among the 29:

• 17 judgments regarding individual rights;
• 14 judgments regarding sharing of skills or constituent power;
• Some judgments included both dimensions.

A TRUDEAUISM OF JUDGES STRONG IN INDIVIDUAL RIGHTS

• In terms of individual rights, the judgments analyzed in the study are 70.6% consistent with Trudeau’s thinking, 17.6% are non-compliant and 11.8% are neutral.

THE SUPREME COURT MORE COMPLIANT THAN THE COURT OF APPEALS

• For the 9 Supreme Court judgments analyzed, the rate of conformity to Trudeauism is estimated at 66.7%.

A DETERMINING TEST IN THE SUPREME COURT ON SECULARITY

A possible judgment by the Supreme Court of Canada (SCC) on Bill 21 would constitute the most important test of the relationship between judges appointed by Ottawa and Trudeauism, believes constitutionalist Daniel Turp.

In a speech delivered at the launch of G. Rousseau’s book on March 22 in Montreal, Mr. Turp stressed that none of the three judges who ruled on Bill 21 had been appointed by Justin Trudeau. As we know, this judgment rendered on February 29 saved almost all of this law adopted in 2019 by the Legault government. Law has since been challenged in court.

In the Supreme Court, however, Mr. Turp noted, six of the nine magistrates were indeed appointed by Justin Trudeau. Note that the SCC has not yet granted permission to appeal the CA’s judgment.