The Chief Justice of the Supreme Court of Canada, Richard Wagner, saw fit this week to give us his opinion on the opinions that Quebec MPs and columnists have expressed regarding the legal opinions of his august court.
A fierce supporter of freedom of expression, far be it from me to forbid him from opining – or quibbling – as he pleases. The fact remains that, not content with using its supreme power to invalidate or not invalidate laws, to determine how the country must behave in matters of gay marriage or end-of-life care, interprovincial trade or environmental power, the The honorable Judge Wagner wishes to have, in the city as in the court, the last word.
In his written statement, the judge denounced “attacks on our judges and on our institutions”. It’s serious. Which ones? “Elected officials have tried to overshadow decisions because they were made by judges appointed by the federal government. ” What to do ? “We must never miss an opportunity to denounce what we perceive to be attacks” on the integrity of judges.
Systemic advantage
This summons is unfortunate, because in the Canadian federation, the final arbiter of disputes between the central power and the provinces is designated by one of the parties: the central power. Other federations act differently. In another context, the Court would have recognized that this shaky arrangement provides the central power with a “systemic” advantage.
The constitutionalist Henri Brun had demonstrated that the Court only invalidated 30% of the provisions of federal laws submitted to it, but 52% of Quebec ones. The height of bias was reached after the 1995 referendum, when the Chief Electoral Officer of Quebec prosecuted the organizers of the large demonstration in Montreal who had knowingly and illegally violated the No spending limit. The judges of the Supreme Court took the pretext of an incidental request, in the Libman decision, to invalidate the articles of Quebec law on which these proceedings were based, ensuring impunity for the No fraudsters. A jewel.
The chief justice added: “There is no this kind of, I call it a pollution perhaps, in terms of appointments that we find in certain companies outside Canada. ” Ah good ?
Did we not hear the then chief judge of the Court of Appeal of Quebec, Michel Robert, former president of the Liberal Party of Canada, declare that it was normal that no one be selected as a judge no independentists? THE National Post did he not demonstrate, last year, that, among the 1,300 judges appointed by Justin Trudeau who had contributed to a political party, 76% had given to the Liberal Party, compared to 23% to the Conservative Party and 0 % to the Bloc Québécois? Didn’t former Justice Minister Jody Wilson-Raybould denounce in her book the “many tactics used by the Prime Minister’s Office to influence appointments”? Did she not write that she “was able to understand how previous ministers, without breaking the law, had made appointments of judges which left a bad smell”?
Never mind. For Judge Wagner, “criticizing the decision because of who the judge is who appointed him” is so intolerable that it may “prove useful, even essential, for the actors of society as a whole to mobilize to denounce and condemn comments of this nature.” Otherwise, “let us not be surprised to see the very foundations of the rule of law of our democracy crumbling.”
The cause is good. But is silencing legitimate and documented criticism the best remedy? I have the presumption to think that we could, on the contrary, strengthen the rule of law by removing Ottawa’s systemic advantage in the appointment of judges and by removing the federal Prime Minister’s ability to fiddle with the process.
Vaginal controversy
Let’s move on to the, shall we say, vaginal side of the controversy. Here is her statement: “An elected official read an article without perhaps verifying the origin and which commented on one of our Supreme Court judgments and gave it an erroneous meaning, and therefore, with this basic premise, she managed to convince other elected officials to join this person in condemning the wording of this decision. However, it turns out that indeed, the reading was erroneous, and if the person had read correctly, they would have noticed that under no circumstances would the Supreme Court have wanted to devalue the notion of women in Canada, on the contrary. But it still created misinformation. »
This person is the Minister of the Status of Women, Martine Biron. The other elected officials are the members of the National Assembly.
Much has been made of the fact that Judge Sheila Martin used “person with a vagina” only once and the word “woman” 67 times. It’s true. But in the vast majority of cases, she cites the first instance judgment that she is contesting. When speaking on her own, she writes: “although the trial judge’s choice to use the words ‘a woman’ may have been regrettable and caused confusion. » Judge Wagner is a co-signatory with Judge Martin of this sentence. In what universe is this sentence not problematic?
We can differ in opinion on the importance of this woke statement in a text from the highest court in the country. We could move on if this was an isolated case. He is not. I will cite two: the Supreme Court’s adherence to a definition of “systemic racism” which imposes a racialist straightjacket on public policies; the decision of the Federal Court to endorse rules which result in banning white men from applying for Canada research chairs. So we can be forgiven for not giving federal judges the benefit of the doubt.
The defamation test
Judge Wagner is not limited to being offended that Quebec legislators had expressed disagreement. It directly calls into question their competence. Liberals and supporters pleaded guilty, admitting to having not read or misread and apologized for having voted for the Biron resolution. We take note of their lack of professionalism. Others, like Minister Biron and PQ lawyers Paul St-Pierre Plamondon and Pascal Paradis, claim to have read well, understood well and denounced well.
Which leads us to this question: are they victims, on the part of the chief justice, of defamation?
Under Canadian law, three criteria must be met to be convicted, in civil proceedings, of having made defamatory remarks. The words must have caused harm by calling into question the reputation of others. For example, claiming that an elected official did not do his job well and engaged in disinformation. Then, you must have made a mistake. For example, having been negligent in not checking whether the elected official had read a judgment before accusing him of not having read it. Finally, a causal link must be established between the words and the damage to reputation. If the insult was uttered in private, the cause is weak. If the remarks were made in front of journalists, the link is clearer.
The question is whether an elected member of the National Assembly will have enough balls (I include Mme Biron in this category) to test the solidity of this hypothesis, and who knows, bring a lawsuit which could go to the Supreme Court! That would be quite a revenge for a person with a vagina.
Jean-François Lisée is a columnist.
He led the PQ from 2016 to 2018.
He published Through the mouth of my pencils. [email protected].