The leading candidate to replace the formidable Beverley McLachlin as she takes her leave as Canada’s chief justice this month was appointed to the Supreme Court by Stephen Harper in 2012.
Over the three years that followed the accession of Quebec justice Richard Wagner to the top bench, the number of Harper appointees to the Court grew to a majority.
Over the same period, the proportion of split rulings on major decisions increased.
That, at least, is the finding of the Macdonald-Laurier Institute, an Ottawa public policy think-tank. Based on a sampling of 10 high-profile rulings a year, the review conducted by Benjamin Perrin, a law professor at the University of British Columbia and a former legal adviser to Harper, found that from 2014 to 2015, the proportion of unanimous decisions on major cases declined from 80 per cent to 50 per cent.
Under McLachlin the court did speak with one voice on some of the most contentious issues that came its way. It was unanimous in giving the green light to medically assisted suicide. And there was no dissent on the decision to send Harper’s senate reform plan back to the drawing board. A 2014 landmark ruling that extended Indigenous land-title rights was also unanimous.
But in the past few years, Perrin notes that “a vocal cadre” of judges has come to increasingly argue that the court is infringing on the policy-making role of Parliament.
Among that group, Wagner has been one of the more constant defenders of Harper’s law-and order legacy, dissenting with the court’s majority decision to strike down mandatory minimum penalties for repeat drug traffickers and for gun crimes.
He also disagreed with the court’s constitutional recognition of the right to strike.
Whether those opinions signal a more deferential approach to the elected branch of government is debatable.
On issues that happen to be a matter of strong consensus in Quebec, Wagner has tended to go against the federal government.
He was on side with the court’s consensus to nix both the Conservative bid to bypass the constitutional route to reform the Senate and the attempt to expand the eligibility criteria for the selection of Quebec appointees to the top court.
Wagner also joined his two Quebec colleagues in dissent when the court turned down Quebec’s request to force Harper to hand it the provincial data of the defunct federal gun registry.
By any measure, the choice of McLachlin’s successor is one of the most significant appointments Trudeau will make as prime minister and one he will likely have to live with for the duration of his political tenure.
McLachlin was Canada’s longest serving chief justice. Over her 29 years as a Supreme Court judge – 18 of those as chief justice – she outlasted five prime ministers. The decisions she presided over impacted just about every public policy area. If appointed, Wagner, 60, would be looking at 15 years in the leading role.
The chief justice was, if not the most powerful, certainly the most influential woman in Canada’s public life for the better part of two decades. She leaves her successor an institution that is held in significantly higher regard by the public than Parliament and those who inhabit it.
As the uneasy cohabitation between the Supreme Court and Harper demonstrated, the former can act as a major counterweight to the power of a majority prime minister.
It has usually been the practice to alternate between a civil code jurist (i.e., one from Quebec) and a common-law one. Based on that, Wagner has always been considered the prohibitive favourite for the position.
The prime minister has surprised observers in the recent past. Trudeau had been widely expected to select at least one Indigenous appointee for either the post of governor-general or the most recent Supreme Court vacancy. That did not happen.
But in this case, the prime minister would only venture off the beaten path at the risk of a serious backlash in his home province. Both the Quebec legal community and the national assembly expect the next chief justice to be a Quebecer. And with contentious challenges to the province’s secularism policies in the legal pipeline, this is not a good time to alienate Quebec from the Supreme Court.
If, as most expect, Wagner does get the nod from the prime minister this month, Trudeau will be following his head albeit not necessarily his heart.
Chantal Hébert is a national affairs writer.