Tucker Carlson came to Alberta recently. Filled two arenas with crowds of ordinary folks. Thousands of them. Many of my friends and family keenly queued and loved every moment of his performance. Many observers decidedly did not.

I understand. I drink my morning coffee from a “Trust but verify” mug. I bought it at the Ronald Reagan Library. My bookcase has biography after biography of the likes of Margaret Thatcher and Winston Churchill. My old truck has a Reagan bumper sticker on it, right beside my NASCAR sticker. 

But my bumper stickers don’t properly portray popular conservative politics anymore. The Reagan one is looking a little faded. 

The people in my day-to-day life are all NASCAR sticker people. They work hard, they protect their families, and they have no time to read a Churchill biography or contemplate Aristotle. I understand them too. 

Since around the time Donald Trump won the Republican nomination there has been a split amongst the broader conservative coalition. There are the well-established, well-connected conservatives. The ones who quote Burke, who turn political theory into policy. The ones with their hands on the levers of power. And then there are the populists. Sick of institutions and structures meant to exclude them. They want their freedom. They want the government to at a minimum stay the hell out of their way and their way of life. This divide is hardly new. Or even all that interesting anymore. It’s been with us for at least eight years. 

Anyway, this reaction got me thinking: who could ever take on Tucker? 

It certainly isn’t the aforementioned conservative elite. They aren’t even trying. Listen to any commentary discussing those who support Trump. “Morons. Dumb. Embarrassing. Deranged.” It’s emotional and hate-filled. It’s hardly convincing. But I’m not sure that’s the intent. 

Elites talking down to blue-collar folk is hardly new. Dog bites man. Elite people think you’re a moron because you don’t agree with them. Yawn. It’s not worth dwelling on. 

What is, though, is where this dispositional divide finds purchase in the real world. Where, if you take the time to listen to people like Tucker, you’ll find a particularly poignant animating cause: the two major conflicts erupting across the world that the West has decided to take an interest in. 

The challenge is that the elite conservative movement supports the war in Ukraine and the war in Israel and, to their horror and the horror of the whole Western world, many in their war-weary base do not. The ruling classes writ large have failed to bring along notable shares of their own parties and the people who vote for them. They have not adequately communicated their case, and are shocked to find dissent to it. 

Why are we supporting Ukraine and Israel’s wars? This is an easy answer for those with their hands on the levers. The types who drive cars without a single bumper sticker on them. The elite conservatives have hardly found a foreign land they aren’t willing to get involved in. Their motives are perhaps pure. Furthering democracy, protecting Western civilization—there are a litany of defensible reasons.

But have we won any of these wars? What was winning ever going to look like? What exactly were we signing up for, and why? In the case of 9/11, there was a very easy answer to these questions. It barely even needed to be said aloud. But thank goodness when it was said aloud the person making the rallying cry was a plain-spoken, salt-of-the-earth president standing on a pile of rubble calling for us to come alongside and join the fight. Strong start. But now years and years later, back and forth across the Middle East, daughters’ and brothers’ lives lost, Osama dead—did we win? Was this what winning looks like?

There may not be a current ask for boots on the ground in Ukraine—particularly for Canada which has few boots to spare. But that does not negate the need for a clearly articulated rallying call. This particularly applies to the United States where the twenty-first century has been marked by large numbers of American troops in theatre in far-flung countries around the world. The groups and communities who are wary of what we might be getting into have experienced wars firsthand. They have been overseas for tour after tour. They understand the costs of war, and they understand what happens when their boots hit that ground. And they are right to ask questions.

The fact that Tucker has done a better job of communicating why these young men and women should stay home is hardly surprising. Doing nothing is a far easier case to make. The truly surprising thing is that conservatives have seemingly abandoned the debate altogether. Who is making the pitch? 

Snippy comments about Tucker or condescending demands are not going to do it. It’s time for the elite conservative class to make their case. It’s time for a dose of humility and a shot of action. Time to take off the pointy hat and go convince some hard hats. 

Take, for instance, the Conservatives here at home. Former leader Erin O’Toole says the vaccine mandates—and those pesky truckers who opposed them, no doubt—was the issue instrumental to his election loss. 

Maybe. Or maybe the country was too unkind to notice him running against the base he had just pretended to champion, right as soon as he no longer needed them. Condescension is a curious campaign strategy, and yet they keep trotting it out. 

That brings us to his successor, Pierre Poilievre. The tentative promise he represents. What does he think of foreign wars? I don’t know. But either way, he doesn’t seem afraid to make his case to the likes of me. That’s a promising start. 

For too long conservatives have been exclusive, ideologically purity-focused to the end result of navel-gazing. Quoting Friedman and Thatcher at cocktail parties while dismissing the real and valid concerns of fellow conservatives. We can all start by putting ourselves in the shoes of those whose sisters and sons who have too often been ignored, maligned, or sent off to war. We can start by communicating with clarity and compassion. We owe it to them. 

In last month’s Supreme Court of Canada decision in R. v. Kruk, the Court used the term “a person with a vagina” rather than “woman.”^{1R. v. Kruk, 2024 SCC 7 [109] rev’g 2022 BCCA 18 aff’g 2020 BCSC 1480.} Contrary to some overwrought comments on social media, the Court was not saying that the preferred term for “woman” is “a person with a vagina.” The use of the phrase nonetheless gives real cause for concern as to whether the Court will be able to fairly adjudicate the cases on trans issues that are sure to come before it.

The main issue in the case was a technical but important point of evidence law. Please bear with some legal background, including with regard to the particular case. Sexual assault cases often turn on the credibility of the accused and complainant, as the crime is typically committed in private and there is often no independent corroborating evidence. In assessing the evidence, a trial judge must necessarily rely on their common sense about human behaviour. But sometimes common sense is not sensible at all; trial judges once relied on the myth that a victim of sexual assault would report the assault immediately and would discount the evidence of a victim who did not do so. The issue in Kruk was how to strike the right balance between common sense and expert evidence in the context of sexual assault.

The accused had been charged with sexually assaulting the complainant while she was blacked out from extreme intoxication. The trial judge convicted, relying in part on the complainant’s evidence that when she woke up, “she felt his penis inside her and she knew what she was feeling.” The trial judge remarked that “[i]t is extremely unlikely that a woman would be mistaken about that feeling.”^{22020 BCSC 1480 [68].} Focusing on this sentence, the British Columbia Court of Appeal held that the trial judge had erred in law by relying on possibly mistaken common sense about what “any” woman would feel, even when highly intoxicated, when the true question was what this particular complainant had felt. The Court of Appeal therefore set aside the conviction and ordered a new trial.

The Supreme Court unanimously held that the trial judge was entitled to rely on the complainant’s evidence and restored the conviction, with Justice Martin writing for the majority. Justice Rowe wrote a concurring decision, with a separate analysis, agreeing with the result.

The majority decision was almost entirely business as usual for the Supreme Court in a criminal law case: a dispassionate analysis of a technical evidentiary issue applied to disturbing facts. The contentious statement was a single phrase in the Court’s summary of the law: “Where a person with a vagina testifies credibly and with certainty that they felt penile vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken.”^{3R. v. Kruk, 2024 SCC 7 [109].} In context, it is abundantly clear that the Court was not suggesting that the preferred term for a woman is “a person with a vagina.” The Court referred repeatedly to “woman” and “women” throughout its decision and discussed at length myths and stereotypes relating to “women.” The only use of the contentious phrase was in that single sentence. The Court never referred to the complainant herself as “a person with a vagina”: the contentious sentence was a general statement of law, not a statement about the complainant in this case.

The Court did say that the trial judge’s use of the words “a woman” was unfortunate, but in context is clear that the word “a” was unfortunate, not the word “woman.” The Court of Appeal has seized on the phrase “a woman” to criticize the trial judge for making unsupported assumptions about all complainants and the Supreme Court spent several paragraphs pointing out that, read in context, the trial judge’s reference to “a woman” was a conclusion about the complainant specifically. By saying the trial judge’s use of the term “a woman” was “unfortunate,” the Supreme Court was trying to soften the blow by providing an excuse for the Court of Appeal’s error.

With all that said, there is still a puzzle. Why did the Court refer to “a person with a vagina” instead of simply “a woman”? The answer seems to be that it is precisely because the statement was a general statement of law and not a statement about the complainant specifically. The Court evidently wanted to indicate that such evidence should be accepted not only when a woman testifies that she felt penile vaginal penetration, but also when a man with a vagina so testifies. In other words, the Court is acknowledging that trans men are men, and by implication, that trans women are women.

The view that trans women are women is politically controversial and legally unsettled. It is also a matter that may well come before the Court. For instance, many of the governing bodies in international sports have implemented policies that biological men cannot compete in the women’s category if they have gone through male puberty.^{4See UCI (cycling); World Athletics (track and field); World Aquatics.} If Canadian sports bodies follow suit, it is very likely that there will be litigation on the question of whether prohibiting trans women from competing in the women’s category would constitute unlawful discrimination on the basis of gender identity under the Canadian Human Rights Act.

Litigation on similar questions is already ongoing in the United States.^{5Here and here.} Most Canadian jurisdictions allow people to change the sex indicated on the official documentation, such as a driver’s licence or passport, but the legal effect of such a change is unclear, as we do not have any legislation equivalent to the U.K. Gender Recognition Act which provides that when gender recognition certificate is issued pursuant to that Act, the person’s gender becomes the acquired gender.^{6Gender Recognition Act 2004 (UK) s. 9}

The Court must have known that this statement would be controversial. No one who takes even a casual interest in public affairs could fail to have noticed the controversy. Why then did the Court comment on this issue, even indirectly? It was not necessary for legal clarity. None of the parties in the case were trans-identified. The phrase “woman” was used throughout the case in every other context at every level of court. None of the eight parties who appeared before the Court raised the issue in their submissions.^{7Which are available on the Court’s website, here and here.} In this context, if the Court had used the word “woman” instead of “a person with a vagina,” the lower courts would undoubtedly have understood that the same rule would apply to the evidence of a man with a vagina.

Now, it might be said that given the controversy, it would be advisable to acknowledge the existence of trans men even though it was strictly unnecessary to the decision. But this could have been done while leaving open the question of whether trans men are men in fact and in law, for example by saying “The same rule of course applies to trans men.” 

Using the term “a person with a vagina” without acknowledging the controversy implies that there is no controversy. The Court is signaling that, in its view, the notion that trans men are men is as uncontroversial as saying that the sun rises in the east. This means that the Court has signaled that it has pre-judged a controversial legal issue that is likely to come before it. Now, it is certainly true that this statement is obiter dicta, and so would not be binding in any case the Court might hear dealing with trans issues. And the remark does not necessarily imply that the Court has made up its mind as a matter of law. It would be possible for a judge to hold the view that trans women are women while being open to the possibility that they are not women in law for the purpose of competitive sports.

But the fact that the Court has not strictly bound itself to hold that trans men are men, and trans women are women, is not the point. Our trust in the courts requires confidence that the court will approach any case that comes before it with a mind open to legal arguments and factual evidence. In this case, the Court went out of its way to insert a legally and politically controversial statement into the decision when it was completely unnecessary to do so. That necessarily undermines our confidence in the Court’s willingness to adjudicate this issue with an open mind when it inevitably comes before the Court. 

It has become increasingly common for companies and institutions to take a public position on politically charged issues. It is no coincidence that polls show that trust in all major institutions is declining. We might have hoped that the Supreme Court of Canada would remain a last bastion of impartiality that would retain the trust of Canadians. The Kruk decision suggests that hope might be in vain.