It’s not every day that a Chief Justice of the Supreme Court pays an official visit to the US capital. On the occasion of his visit, the Canadian Embassy in Washington organized a reception in honor of Richard Wagner.
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There he met Judge Stephen Breyer, who had just retired – replaced by the court’s first black woman, Ketanji Brown Jackson. He is a charming man, a Francophile and a Montreal lover. The conversation between the two men was pleasant on this May 2nd.
“But at some point his phone rings. And even. Maybe he doesn’t answer: it didn’t stop for half an hour…” Chief Justice Wagner said in an interview on the sidelines of a conference held Thursday at the Council on International Relations of Montreal (CORIM).
When Judge Wagner returned to his hotel that evening, he understood what was happening: an unprecedented leak had just occurred at the United States Supreme Court. The version of what appears to be the court’s majority opinion on the abortion file was leaked to the Politico website. The unpublished judgment rewrites the court’s most controversial decision in half a century, a decision that changed American politics: Roe v. Wade.
If faces could be named, I would say Judge Wagner’s face was devastated by this decision that reverses 50 years of women’s rights. But if we stick to spoken words, Judge Wagner was “traumatized” by this unprecedented breach of confidentiality.
When he was in Washington, he was supposed to meet his counterpart, John Roberts, Chief Justice of the US Supreme Court. The judges of the two courts meet every two to three years and have been sharing their practices and experiences for several years.
They were supposed to have lunch in the Supreme Court building the next morning. On the evening of the flight, the court was already surrounded and barricaded by demonstrators.
“I called his office to ask if he’d rather cancel our meeting, maybe he had something more urgent to do…”
No way to undo that. Intelligence brought Judge Wagner into the building, and the two men went through their schedules.
“He didn’t talk about the events, but when he heard the demonstrators screaming in the street, it was chaos,” judge Wagner confided in this historic day.
A criminal investigation has been launched into the origin of the leak. The case is far from over and will continue long after the verdict is released, which is expected within three weeks.
Such a vulnerability, in the middle of discussions between judges, is “an attack on the credibility of the institution, which leads to a loss of trust. It’s quite a dramatic event.”
If the Canadian court lives its tensions and its disagreements, “there aren’t the ingredients and the division here that other courts can live, we don’t have the same DNA,” judge Wagner estimates.
Five of the current nine justices of Canada’s Supreme Court were appointed by a Conservative government (including Justice Wagner, who was later appointed Chief Justice by the Liberal government). But even on sensitive issues like criminal justice, the Nine are often united or divided along much more blurred lines.
Nonetheless, Judge Wagner is concerned about increasing attacks on judicial independence by politicians and others in several countries. He believes the appointment process in Canada has never been more transparent and credible. An independent committee is in the process of recruiting the next Ontario judge to replace Judge Michael Moldaver, who is retiring this year. The government must choose from a list of three to five names. One of the criteria is now “functional bilingualism”.
A quasi-constitutional norm
Bilingualism has been officially ‘encouraged’ for a long time, but in reality it has never really been made such a serious criterion. Judge Wagner believes this issue has achieved “constitutional norm” status in the Supreme Court.
“It is now clear that judges aspiring to the Supreme Court who do not speak French will need to learn it in order to be able to work in both official languages.
“It’s a matter of respect, of transparency; People have to recognize themselves in their institutions. »
He rejects the argument that this language criterion deprives the court of high-quality candidates, particularly from diversity and indigenous communities.
“That’s not a valid argument. I hope that a native will join our court and other courts for the same reasons: so that they recognize themselves in their institutions. But there are minimum requirements for Supreme Court membership. We demand it from the people of Quebec, but also from outside of Quebec. »
The example of Ontario judge Mahmud Jamal, the first non-white judge appointed last year and who speaks excellent French, confirms that the task is not insurmountable.
He is not particularly concerned about attacks on the Court’s very legitimacy as arbiter of constitutionality of laws.
Several Conservatives have criticized the court for being too socially left; others in Quebec are currently offended by legal challenges to Bills 96 and 21.
“Since the Charter (1982) there has been this kind of controversy from all sorts of quarters about whether it is advisable to entrust so much power to the judges. It is present in all democratic societies,” states Judge Wagner.
It happens when decisions don’t suit certain groups. But we will know the value of democracy in a society by the way we answer these questions.
Richard Wagner, Chief Justice of the Supreme Court of Canada
What particularly worries him, especially since last winter’s blockade of Ottawa, is the impact of misinformation and misinformation circulating at high speed.
To do this, he wants to publicize the work of the judges, that of his court, by increasing public initiatives. In September, the court will meet outside of Ottawa for the second time in its existence. In the midst of the Quebec election campaign, the nine judges will be hearing cases in Quebec. In a quieter atmosphere than Washington this spring or Ottawa last winter…