Allan C. Hutchinson is a distinguished research professor at Osgoode Hall Law School and the author of The Companies We Keep: Corporate Governance for a Democratic Society.
The controversy surrounding Justice Russell Brown’s leave from the Supreme Court, which began in February and is under investigation by the Canadian Judicial Council, has many different dimensions and implications. Apart from the question of whether he will or should return to the court following a confidential complaint from a member of the public, one issue occupying observers’ minds is what this means for the handling of cases presently before the court.
There are differences of opinion on whether the court should sit as a group of eight (and allow for the possibility of a tied vote) or seven (and face the dilemma of whom to leave out). This is a pressing issue, especially in regard to an important case to be heard this week on federalism and environmental legislation.
However, within and behind this debate is a much more fundamental matter – the relationship between constitutional law and politics. In particular, whether sensitive and contested issues of federalism are being decided in line with the dictates of constitutional law or by reliance on partial political stands and values.
The central bone of contention seems to be that the Albertan Justice Brown is considered to be a strong proponent of provincial rights and was almost certain to rule against the constitutionality of the federal government’s wide-ranging legislation to tackle pollution problems. So, if there is to be a bench of seven, the identity and federalism leanings of the justice who sits out the case must be treated as a matter of some delicacy and importance.
The premise on which this debate is based is troubling for those who maintain that constitutional law should and must trump constitutional politics. Traditionally, it is usually insisted that the legitimacy of the Supreme Court rests on its capacity to transcend political contestation by acting with measured, rational and non-ideological level-headedness. Judges deal in principles, not politics.
The received wisdom is that, while there are underlying and sharp ideological differences between different governments about climate change and the best response to be made, there exists a deeper and more unifying commitment to the idea that the Canadian Constitution stands apart from prosaic politics. While Prime Minister Justin Trudeau and his provincial colleagues play politics and get their hands dirty, Supreme Court Chief Justice Richard Wagner and his puisne associates are expected to keep their hands clean of any political dirt.
But the general acceptance that Justice Brown is pre-disposed to be pro-provincial and that some of his colleagues, including Chief Justice Wagner, are more than likely to be pro-federal, has massive ramifications. Any notion that these judges are somehow neutral and impartial goes out the window. They are involved in the same ideological game as their political counterparts.
The fact is that, while courts may well be impartial to the competing claims of the present federal and provincial governments in terms of party politics, they are not and cannot be impartial between competing visions and versions of federalism. Although viewed as being more technical than political, federalism disputes involve deep-seated and contested accounts of governmental arrangements, social values, institutional power and democratic accountability.
So, while courts and legislatures may have different discourses, different styles and different legitimacies when talking about a fair allocation of powers between the federal and provincial governments, they are no less political for that. In other words, judges can hide their views, but they cannot avoid making political choices.
The whole debacle over Justice Brown’s absence draws attention to this state of affairs. Perhaps inadvertently, but still revealingly, the ensuing debate has demonstrated that judges do have politics and that, more significantly, they do rely on them to animate their decisions and reasonings. Otherwise, why would it matter who sits and who doesn’t?
Both judicial sides of the federalism debate can claim support for their positions; the doctrines of constitutional law are so capacious, so inconsistent and so accommodating in their reach and substance that they can confer a necessary baseline of legal validity on either a pro-provincial or pro-federal approach. Understood this way, the rule of law becomes little more than the rule of five: the stand that garners the support of five judges wins.
None of this is to suggest that the judges act in bad faith or are decidedly manipulative in fulfilling their judicial duties. It is that there is no way to engage with and resolve federalism issues in a way that can claim to be acting in the neutral and detached way that the judges and their traditional allies suppose. Constitutional law is politics. And Canadians need to appreciate that.
New Brunswick voters have elected a Liberal majority government, tossing out the incumbent Progressive Conservatives after six years in power and handing the reins to the first woman ever to lead the province. Liberal Leader Susan Holt spent much of the campaign rolling out proposed fixes for a health-care system racked by a doctor shortage, overcrowded emergency rooms and long wait-times. She promised to open 30 community health clinics across the province by 2028. (Oct. 22, 2024)
Susan Holt has made history in New Brunswick by becoming the first woman to serve as the leader of the province’s Liberal Party, a significant milestone in the province’s political landscape. Holt’s leadership victory signals a new era of representation, gender equality, and change in the region, which has long been dominated by male politicians.
Holt’s journey to the top has been one of perseverance and dedication. Before entering politics, she built a distinguished career in the private sector, where she held numerous leadership positions. Her experience in business development and public policy has equipped her with the skills needed to navigate the complex world of politics.
In a province where women have historically been underrepresented in politics, Holt’s election represents a watershed moment. Women’s involvement in leadership roles has been steadily increasing nationwide, but New Brunswick, like many parts of Canada, has seen slower progress in achieving gender parity. Holt’s rise to the top of the Liberal Party not only shatters a glass ceiling but also serves as an inspiration for future generations of women aiming for political leadership.
As the leader of the New Brunswick Liberal Party, Holt has laid out a vision of inclusivity and progress. Her policies focus on economic development, healthcare reform, environmental sustainability, and addressing social issues that have plagued the province. She has also emphasized the importance of transparent governance and creating opportunities for underrepresented communities, making her platform both modern and forward-thinking.
Holt’s leadership arrives at a time when many voters are calling for change, especially in the face of challenges like economic uncertainty and the need for healthcare improvements. She aims to bring fresh ideas to tackle these issues while ensuring that all citizens, regardless of their background, have a voice in government decisions.
Susan Holt joins the ranks of other trailblazing women across Canada who have led provincial parties and governments. Women like former Alberta Premier Rachel Notley and Ontario’s Kathleen Wynne have paved the way, and now Holt is contributing to this growing legacy of female political leadership in Canada.
Her achievement highlights not only the growing number of women entering politics but also the demand for leaders who can bring diverse perspectives to the table. In a field often dominated by entrenched traditions, Holt’s election is a step toward a more inclusive and representative political landscape in New Brunswick.
Holt’s leadership signals a broader shift in Canadian politics, where more women and diverse voices are gaining prominence. For young women across the country, her rise serves as a powerful reminder that leadership roles are within reach, even in traditionally male-dominated spheres.
With her election, Susan Holt has proven that perseverance, skill, and a vision for change can break even the toughest barriers. Her leadership will not only reshape New Brunswick’s political future but also inspire others across Canada to pursue leadership positions and continue to challenge the status quo.
NDP Leader Carla Beck has two planned campaign events today, starting the day with an availability in Moose Jaw and then later this evening attending an event in the capital with the Regina Medical Staff Association.
Saskatchewan Party Leader Scott Moe, meanwhile, will speak in Prince Albert at the start of Voting Week in the province.
Saskatchewan residents can vote for five days starting today in the lead-up to next week’s provincial election, although polls won’t be open Sunday.
The NDP and the Saskatchewan Party are urging voters to cast their ballots early.
Voters can find their polling stations on their information cards or by visiting the Elections Saskatchewan website.
Chief electoral officer Michael Boda says there are about 810,000 registered voters in Saskatchewan.
This report by The Canadian Press was first published Oct. 22, 2024.
