When Roy Romanow was premier of Saskatchewan, he had a saying that can be paraphrased: when observers or commentators offer political statements or opinions, they are in my bailiwick and I shall be free to respond as I see fit.
Romanow's dictum came to mind in reading Supreme Court Chief Justice Richard Wagner's warning against 'attacks' on the judicial system and portraying judges as 'political actors' or 'obstacles to the will of the people.'
When I was a law student more than five decades ago, there were protocols and linguistic conventions that shaped how we referred to judges and other colleagues. Opponents were worthy, judges were learned and there was fealty to the idea that courts were non-political arbiters between litigants.
This has changed. In 1982, Canada adopted a Charter of Rights, which protects some of our most important values, including equality, freedom of speech and freedom of religion. It also entrenched group rights, including bilingualism, multiculturalism and Indigenous rights.
However, the Charter is brief and does not explain these rights and freedoms. It was left to judges to decide what the Charter means. So while judges are not actors on the political stage, they decide Charter cases laden with political values.
Yet the courts can choose to be more or less activist in making those decisions, and to leave more or less scope for our elected representatives to decide how we should be governed. This means that there is legitimate interest in the social and political meaning of these choices, including the ends to which they lead.
Judges, for example, can impose lenient sentences to spare offenders from deportation, decisions that could fairly be described as political. In Ontario, a judge suspended a provision regulating bike lanes, finding a potential infringement of the Sec. 7 right to life, liberty and security of the person.
The latest example is the Supreme Court of Canada's decision that it is unconstitutional to appoint a lieutenant governor of New Brunswick who does not speak French.
We may agree that it would be unwise to do so in a province in which English and French are official languages and about one-third of the population are French speakers who are entitled to receive government services in their language. But it is a sizable leap to rule it unconstitutional, as New Brunswick has the capacity to provide government services in French, including those from the lieutenant governor's office.
It is effectively the prime minister who chooses viceregal representatives by advising the monarch through the governor general. Imposing a condition limiting the heretofore unqualified right of prime ministers to choose whom they wish diminishes their political authority.
