In a speech on Wednesday, Chief Justice Glenn Joyal said chief justices across Canada grapple 'on a daily basis' with how and when to speak out.Daniel Crump/The Globe and Mail
Top judges need to speak out and at times take bold actions to maintain public confidence in the courts, says Chief Justice Glenn Joyal of the Manitoba Court of King’s Bench, who is seen as a leading contender for an open seat on the Supreme Court of Canada.
Speaking at the University of Ottawa’s law school, Chief Justice Joyal said it is important for judges to speak out when necessary. He cited challenges such as recent threats to the rule of law and broader issues such as Canada’s sovereignty and national unity.
He noted “the well-understood requirement for judicial reserve,” but insisted that being overly reserved was a mistake.
“There is now a need for the sometimes bold, albeit thoughtful, action of judges to say and to do things that might, at first blush, seem at odds or inconsistent with that traditional restraining reflex,” Chief Justice Joyal said in a speech late Wednesday afternoon.
He pointed to a recent episode in Alberta, as well as a similar episode in Ontario last year.
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In January, Alberta Premier Danielle Smith spoke out about wanting to “direct” judges. Several days later, top judges there, led by the province’s acting Chief Justice Dawn Pentelechuk, issued a rare statement that underlined the importance of independent courts in a healthy democracy.
Last April, Ontario Premier Doug Ford called judicial independence “a joke.” Top judges in the province, including Chief Justice Michael Tulloch, issued a statement that called judicial independence a cornerstone of Canada’s constitutional democracy.
In Chief Justice Joyal’s speech on Wednesday, he said: “I can assure you, all of you, that Chief Justices across the country on a daily basis are grappling with how and when to speak out.”
Chief Justice Joyal is seen by legal experts as a leading contender for the open seat on the Supreme Court of Canada.Daniel Crump/The Globe and Mail
It’s a coincidence that the speech was held shortly after an upcoming opening on the Supreme Court was announced in January. The invitation to give the speech was made last spring and it was supposed to take place last fall before it was rescheduled for this month.
Chief Justice Joyal is seen by legal experts as a leading contender for the open seat on the top court, if he seeks it. He has previously applied for a Supreme Court opening. Through a spokeswoman, he declined comment on whether he plans to apply again.
In mid-January, Justice Sheilah Martin of the Supreme Court announced her retirement. Her last day is May 30. Prime Minister Mark Carney will choose her replacement. Over the past decade, the federal government has created an advisory board for each Supreme Court opening. The board assesses applications, interviews candidates and submits a shortlist of names. The Prime Minister isn’t required to rely on that list.
The Prime Minister’s Office has not announced any details on the process to replace Justice Martin.
The opening by convention will be filled by someone from Western Canada. Justice Martin is from Calgary. Five of the past seven Western seats were filled with people from Alberta. Other potential contenders cited by legal experts for the opening include Justice Peter Edelmann of the British Columbia Court of Appeal and Justice Naheed Bardai of the Saskatchewan Court of Appeal.
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The central question of Chief Justice Joyal’s speech – what public role judges should play beyond the writing in their rulings – has been at the fore in recent years.
Chief Justice Richard Wagner of the Supreme Court conducts annual press conferences, a move that some critics believe judges should avoid. Chief Justice Tulloch in Ontario each year brings judges of the Ontario Court of Appeal to a series of meetings with community leaders in various cities to make the province’s top court more accessible.
Beyond speaking out when necessary, one example Chief Justice Joyal noted in his speech regarding bold change was his work at the Court of King’s Bench in Manitoba to consider ways in which Indigenous legal traditions could be integrated into how courts operate. It is an effort to push forward on reconciliation.
While critics may see this as “unduly bold, controversial, even injudicious,” such work is essential and to not pursue it “risks further diminishing the very public confidence on which judicial independence depends,” he said.