With Canada Day around the corner, it’s natural to reflect on our country’s national identity—or lack thereof. When I was a kid getting a flag painted on my cheek at the community centre, my parents and their peers were thinking about Quebec separatism and Western alienation. Jean Charest tried to channel this version of national identity crisis into a successful Conservative party leadership bid, but he proved that while nationalism is still a driving force in Quebec politics and Western alienation continues to energize voters in Alberta, our country’s current identity crisis is about something different.

Pierre Poilievre came closer by targeting cancel culture and defending our shared history, but even that doesn’t feel up to the task of salvaging an eroding Canadian identity. At the height of the global pandemic, when truckers from rural British Columbia clashed with public servants from Westboro, and our own prime minister was stoking the flames of division, it became clear these Canadians had no shared experience to refer to—not even a common language with which to start a conversation. Post-COVID, Canadians have never been lonelier, our economy is desperate for labour, we can’t get anything built, and we’re struggling to care for our young and our old. 

What if we could build a common identity, inculcate a shared national vision, and address some of our economy’s biggest challenges all at once? Eighteen-year-old Canadians should be required to perform a mandatory year of service—in the military or caring for seniors or children. They should be encouraged to serve in a place they didn’t grow up in and meet people different from themselves. It could bolster our ailing military, inject long-term care homes and childcare centres with the labour they desperately need, increase birth rates, and cure loneliness. And it would give us something meaningful to celebrate on Canada Day: a shared national identity. 

As a matter of public policy, mandatory service is almost always contemplated in the context of military conscription. And it’s worth considering the case of Israel. If you’ve travelled the country, you’ve no doubt encountered groups of teenagers in army fatigues, looking like they’re experiencing a right-of-passage akin to summer camp. And while mandatory military service is rather more existential for a country under constant threat of attack from its neighbours, it’s worth looking at what other impacts the program has had beyond strong defence forces. Israel’s birth rate is almost double Canada’s, it punches above its weight on innovation, and it tends to score high on measures of happiness and longevity. It’s not hard to imagine how the effect of most of the country’s population joining together in training and mission at the cusp of adulthood would strengthen social bonds.

And it’s not like Canada’s military couldn’t use the boost. We haven’t met our NATO spending obligations in years and our armed forces are facing a worsening recruitment challenge, seemingly unable to attract young Canadians to opt voluntarily into service. Imagine the boost mandatory service could give our military, and the pride young people would feel having contributed to their country’s strength on the world stage.

And service to country doesn’t have to just mean military. For a wealthy country, we struggle to adequately care for our eldest and our youngest. Long-term care homes and home care providers across the country are facing chronic labour shortages and provinces are struggling to meet childcare demand. A lot of the need in health care is for highly skilled labour, but some of the demand for care could be filled by eager young people with minimal training, particularly if we remove artificial credential barriers where they’re unnecessary. Not everyone who helps to care for kids needs to be an early childhood educator and we learned through the pandemic that those caring for seniors benefit from staff with even just a small amount of training.

If we tapped into 18-year-olds across the country, not only could we urgently meet some short-term labour demands, but some may also learn they have a passion for caring and go on to upskill, supplying the country with more trained nurses, doctors, and teachers. Beyond our economic need for caregiving labour, Canada, like so many other developed Western countries, is facing a loneliness epidemic, acute among seniors, and a mental health crisis, acute among young people. It’s not hard to imagine that more time spent with young people might alleviate some loneliness among the aged, while more in-real-life time spent with elders might lessen some of the smartphone-exacerbated mental health challenges faced by Canadian teens.

There are no doubt other areas of Canadian society that could use a year of commitment from our young people—construction of public infrastructure, firefighting, and flood prevention, maybe even tree planting—but what’s important is the service, the shared experience, and the national mission. It’s an ambitious idea, and there’s certainly no shortage of practical reasons it wouldn’t work. It would be expensive (though we did just spend $16 billion on a car battery plant), logistically complicated, and might exacerbate private-sector labour shortages.

But it could be worth it, particularly if the program is designed to maximize social cohesion, sending urban kids to rural environments and vice versa. Conservatives balked when Prime Minister Trudeau said he thought Canada had no “core identity”. But do we? Not only do Canadians today seem to lack knowledge of and respect for our shared history, we seem to lack a sense of anything shared at all. This Canada Day it’s worth considering, wouldn’t we be stronger as a country if we had a plan to work on that?

Justice Russell Brown of the Supreme Court is now, unbelievably, former Justice Brown. In my initial “quick response” to Justice Brown’s retirement, I argued that the Canadian Judicial Council’s call for an inquiry into his behaviour constituted a dishonourable process. I also explained why it is difficult to understand how Chief Justice Wagner could claim the power to “put [Justice Brown] on leave”, in light of the fact that the Judges Act only contemplates voluntary leave for six months without cabinet approval.

Unfortunately, the Chief Justice’s public comments have only made his role in this matter more uncertain in ways that may threaten the legitimacy of the Supreme Court. 

In his press conference on June 13, 2023, Chief Justice Wagner attempted to clarify how Justice Brown came to be on leave, claiming “we both agreed, in the circumstances, that the best course to adopt would be for him to stay on the side and leave the Court, pending the resolution of this complaint.” This account appears to be in tension with the Court’s earlier press release, which stated:

Chief Justice Wagner put [Justice Brown] on leave from his duties at the Supreme Court of Canada.

Le judge en chef Wagner l’a mis en congé de ses fonctions à la cour suprême du Canada.

The statements in the press release imply Chief Justice Wagner alone was the decision-maker. This raises new questions about the Chief Justice’s role. 

Before exploring the significance of the tension between the Chief Justice’s statements, one has to review why he does not have the power to place puisne judges on involuntary leave. The Judges Act permits up to six months of voluntary leaves—at the request of the judge on leave. Any voluntary leaves longer than that will require cabinet approval. It is true that courts have general powers to ensure operations, but these powers cannot conflict with the Judges Act, which does not contemplate involuntary leaves.  

So Chief Justice Wagner’s early statement that he “put” Justice Brown on leave suggested that he assumed a power he did not have: the power to place a judge on involuntary leave. His statement at the press conference now suggests that Justice Brown voluntarily agreed to be put on leave, which would be lawful. The tension between these statements suggests that the Chief Justice may not be telling the whole story here. It remains unclear just what was agreed to, and if Justice Brown did agree to voluntary leave, new questions arise. 

Above all, it is unclear why Justice Brown was prevented from participating in judgements for which he was already present in the hearing. This included major constitutional cases where litigants prepared arguments expecting Justice Brown to participate in the judgement only to find him excluded, such as Yanick Murray Hall v. A.G. Quebec and R. v. McGregor. Chief justices do have authority to decline to assign judges credibly accused of potentially removable conduct to new cases, but they are still allowed to complete their reserved cases and work with their colleagues in such a situation. The Chief Justice had no power to prevent Justice Brown from participating in such cases while he waited for the CJC to decide on the complaint against him.

Chief Justice Wagner’s broader comments in the press conference only made matters worse. On the one hand, he stated confidence in the system that dealt with the complaint against Justice Brown: 

One complaint is one too many. It should never happen, but that’s reality – it happens. … We’re lucky in this country to have some institutions to take care of those things.

On the other hand, during the same press conference, he advocated for Bill C-9, legislation (currently sent back to the House by the Senate with amendments) that would amend the Judges Act and reform the CJC’s process for reviewing complaints against federally appointed judges:

For me [the judicial conduct process] was scandalous, and had to be changed… So [C-9]’s been kicking around Parliament for quite a few times, quite a few years I would say, it has to stop. This legislation has to be adopted. And I think it would be in the best interest of the public, the best interest of the judiciary, and the best interest of transparency. That said, at the last meeting of the CJC in April, I asked the Committee to look at their own regulations to see if they could not make them more transparent… there’s something opaque right now and I’m not comfortable with that.   

Set aside for a moment the fact that the Chief Justice of the highest Court in Canada is advocating for government legislation concerning the organization of the judiciary, and a regulatory body that he heads. His comments are also clearly contradictory. On the one hand, Canadians should be thankful that our institutions take care of these matters; on the other hand, the current process is “scandalous” and needs to be fixed through specific legislation. This is all the more confusing given that the reporters asking for more transparency in the case of Justice Brown were rebuffed.

Moreover, Bill C-9 removes the constitutional right to judicial review of regulatory action (remember: the Canadian Judicial Council is a regulator exercising statutory power), replacing it with an opportunity to seek leave to appeal to the Supreme Court of Canada, which can deny leave to appeal without reasons. Professor Paul Daly has persuasively argued that this will, at best, need to be “read down” to comply with basic administrative law principles and in fact create more litigation and delay. One hopes that the government will adopt the proposed amendments of Senator Brent Cotter (former dean of the University of Saskatchewan College of Law) that will permit appeals of CJC decisions to the Federal Court of Appeal. This is important given that judicial disciplinary bodies have been known to come to unreasonable decisions, such as in the saga of Justice Patrick Smith (who was unreasonably found to have committed judicial misconduct by becoming unpaid Interim Dean of Lakehead University’s law school) and Ontario Justice-of-the-Peace Julie Lauzon (who was reinstated into office this month by the Ontario Court of Appeal after the discipline body failed to consider her Charter rights).

The Chief Justice is right about one thing, however: there is “something opaque right now,” and none of us should be comfortable with it. The Supreme Court, which not long ago approved a 50-year embargo on its internal communications, is an institution shrouded in secrecy. The CJC—chaired by none other than Chief Justice Wagner—has behaved with almost comic opacity for an institution whose mission is to “Build the trust of Canadians through our transparency.”

A lack of transparency in how courts make decisions—with conference debates and votes conducted behind closed doors—is regularly understood to be an important aspect of judicial independence. Even so, it comes with a trade-off. Some form of public transparency—for example concerning the appointment and dismissal of judges—becomes a key ingredient in maintaining judicial legitimacy in the eyes of the public, especially when the court is compared with the publicized drama of Parliament.

Chief Justice Wagner’s conduct throughout this sad episode has been a transparently opaque mess of contradictions, conflicts, and obfuscation. He is gambling with judicial independence.