Chris Selley: Canada's Supreme Court justices gone wild

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On Thursday, the Supreme Court of Canada’s over-caffeinated social-media team reminded those of us who did not already know — which was pretty much everyone, judging by the reaction — that as of 2021, the court has its very own flag.

The flag is a diamond shape composed of nine smaller diamond shapes — called “lozenges,” in the world of heraldry — with a Maple Leaf in each. Nine perfect, infallible diamonds for nine perfect, infallible justices, apparently representing (per the court’s website) their collective “central role … as the guarantor of the Constitution and the rights and freedoms of all Canadians.”

(This does not constitute a legal guarantee of your rights and freedoms. Repeat: Not.)

“The white background conveys the ideals of transparency and accessibility in the court system,” the court’s website continues, perhaps hoping we’ll forget or not care that Chief Justice Richard Wagner some years ago declared that he and his colleagues’ written internal deliberations on their often baffling and scattershot decisions should be kept secret for half a century — a waiting period that retired Supreme Court justice John Major deemed “too long for any useful purpose.”

(Retired U.S. Supreme Court justices can release what they like when they like, and generally do so quite generously, almost as if they’re proud of their decisions and stand behind them.)

“Red and white are emblematic of Canada,” the website explains of the flag, “while gold symbolizes excellence.”

Nothing in the flag seems to symbolize humility. “Just fly the American flag already and put the final stake in the heart of the Westminster system and responsible government,” conservative commentator and lawyer Howard Anglin suggested — a tad harsh, perhaps, but I share the frustration.

Mind you, the Supreme Court’s flag becomes slightly less offensive when you consider it also has its own mascot: Amicus the Owl. “I am very proud to have been chosen to represent the highest court in the country,” Amicus tells children in the court’s “Youth Activity Book,” and I am not making this up.

“The owl is a good ambassador for the Supreme Court because it symbolizes wisdom and learning,” it tells children. There is no explicit instruction to bow if they ever encounter a Supreme Court justice on the street, or while dining at the Metropolitain, but children could be forgiven for assuming it was expected.

Follow the SCC on social media and you get the impression of an international legal-affairs NGO that occasionally also hears legal cases. (And not that many legal cases, incidentally: just 53 in all of 2022.)

Richard Wagner’s recent junkets and photo ops include meeting “judges and courts administrators from Lithuania and Norway”; presenting “an award in his name” at the University of Windsor’s Faculty of Law; snapshots from an international conference of judges in Paris, where he spoke on “justice, future generations and the environment”; and “a judicial exchange hosted by Chief Justice Raymond Zondo and his colleagues from the Constitutional Court of South Africa.”

“Canada and South Africa share a commitment to democratic governance, human rights and the rule of law,” the Supreme Court of Canada’s X account burbled.

Do they? “The Department of Basic Education failed in its promise to eradicate pit latrines in schools,” Amnesty International complained in its 2023 assessment of South Africa. “Threats against human rights defenders, activists and whistle-blowers, and attempts to silence journalists continued.”

Well, it sounded good on social media anyway.

On April 5, Canada’s Supreme Court announced Wagner was “honoured to be named one of Quebec’s 100 most influential people” by L’actualité. “Since his appointment in 2017, (Wagner) has brought a new dynamic to the country’s highest court,” the magazine observed. “Never has a chief justice taken such a public position on diversity in the senior judiciary, on bilingualism, on disinformation.”

L’actualité didn’t say these were good influences, but that’s the impression it left. Is that what we really want? A Supreme Court judge raised in the lap of bilingual luxury — son of former Quebec justice minister Claude Wagner, educated like all proper Montrealers at Collège Jean-de-Brébeuf — declaring that unilingual or imperfectly bilingual Canadians from, say, Moose Jaw can’t be proper Supreme Court justices? A Supreme Court judge weighing in on a political priority of the current government, namely “online harms”?

I think not. Wagner’s attempts to build the Supreme Court into something more than what it should be or needs to be is an ongoing frustration at a time when hardly any institution in this country seems able or willing to stay in its lane.

Governor General Mary Simon, and more astonishingly her advisers, thought it appropriate to invite the federal justice minister to a confab on online harassment and abuse, at a time when said justice minister is flogging a half-baked bill on the subject. Read most charitably, they put an unforgivable amount of faith in a politician not to politicize an important issue. And I’m not suggesting anyone should read it that charitably.

Justin Trudeau’s federal government treats provincial jurisdiction as a sort of accident of history, or just pretends it doesn’t exist at all, promising us “national” programs on dental care and pharmacare and day care that literally cannot exist without provincial buy-in — which in several cases isn’t there. The Opposition Conservatives, while tipping a hat to the constitutional division of powers, aren’t much better, blaming just about any Canadian problem you can name — including in provincial matters like health care — on Trudeau and his cabinet.

The Supreme Court of Canada shouldn’t have an X account, or a Facebook account, or any other social media account except to announce its decisions. If the ultimate arbiter of legality in this country can’t confine itself to its proper role, why should anyone else?

National Post
cselley@postmedia.com

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