The Supreme Court of Canada (SCC) is in anniversary mode this year. Sesquicentennial anniversary mode, to be precise. It was in 1875 that Parliament exercised the authority given to it by Section 101 of the Constitution and established a “general court of appeal for Canada,” which could hear appeals from courts across the country. While the Supreme Court wasn’t really the supreme court of Canada—until 1949, that was the Judicial Committee of the Privy Council in London—that’s what Parliament decided to call it. And now, a century and a half later, that’s what we’re celebrating.
The SCC has arranged a bumper set of celebratory events,In April, it sponsored a symposium on itself. It published a children’s book, and it ran youth art and essay contests. Throughout the year, it is visiting five different cities across Canada. For the dwindling number of us who still use cash, the Mint has even issued a commemorative Loonie in honour of the anniversary. but the climax of the historical celebration will be a “Ceremonial Opening” of the judicial year, to be held in October. The judges will be decked out in their ceremonial robes; the minister of justice and representatives of the legal profession will be in attendance in their own formal robes. Tributes will be offered. Homage to the rule of law will be paid. Both official languages will be spoken, and given that it’s 2025, we will probably hear some Algonquin, as well—along with a smattering of Latin, of course.
Done well, legal ceremonial is about as stirring as it comes, as anyone with an ounce of romance in their soul knows. Yet what is the SCC going to use the October occasion to do? Why, to turn its back on the history it is ostensibly celebrating, and to consign to the dustbin the ceremonial robes that the judges have worn for this past century and a half, that’s what. Could anything be more “Canada in the 21st century” than that?
Richard Wagner, the SCC’s chief justice, explained it this way: “The Speech from the Throne on May 27th was the last time my colleagues and I will have worn [the traditional scarlet ceremonial] robes, with the white mink fur. This year, for the 150th anniversary, the moment has come to have new robes that better reflect Canadian identity.” And not to miss an elbows-up opportunity, he concluded that “The new robes will be made in Canada.”
So, what we’ll see at the fall ceremony are robes that “better reflect Canadian identity.” Presumably, the chief justice is not criticizing the scarlet colour of the current get-up. After all, one can’t imagine that he would openly be throwing shade at the RCMP; the Mounties are about as iconically Canadian as you can get, and they’ve been wearing scarlet longer than the Supremes have. And for that matter, Canadian soldiers have been wearing ceremonial scarlet for even longer.
So if it’s not the colour, what could it be about the robes that makes them un-Canadian?
The truth, of course, is that the principal objection to the current ceremonial robes is that they superficially resemble the robes worn by judges in England. Never mind that judges in places as diverse as Nigeria, Jamaica, New Zealand, and Australia also wear similar robes, the fact that ours have English roots makes them imperative candidates for the chopping block.
On its website, the SCC has described the theme of its anniversary as “150 years of upholding the rule of law, building public trust, and serving our community.” These are all things worthy of celebration—especially given the turbulence of our times and what we are seeing unfolding next door.
But let’s unpack them. There is no doubt that the judges work very hard, and the cases they hear generally involve extremely complex issues. And on top of their day jobs, they are expected to maintain a regular program of visiting law schools and speaking with community groups. Being a supreme is no sinecure today. So check on the third plank of the anniversary theme.Full disclosure: over the past 25 years, I have had the acquaintance of many members of the Court, and I would count more than a handful of them as good friends.
But what of upholding the rule of law and building public trust? Implicit in them is an acknowledgment that, at its base, the rule of law is a voluntary thing. We have the rule of law in Canada not because the police say so, but because the majority of the population voluntarily complies with the law. And that is because we trust in our institutions. We, of course, can criticize them. Indeed, as a law professor, that is my stock in trade. But when all is said and done, we buy into the notion that, as the old-fashioned expression had it, a government of laws is better than one of men. So we follow the law, even if we don’t agree with it.
If voluntary compliance is the foundation of the rule of law, its keystone is the SCC. Someone has to have the final say as to what the law is, and in our system, that is the nine members of the SCC. We don’t believe that they are the nine smartest judges in the country (they aren’t). The SCC that we have reflects a balance of judicial ability and regional, linguistic, and gender considerations. On the whole, the system works well.
But none of us should lose sight of the fact that it depends on voluntariness. Put another way, the judges should not believe their own press. They aren’t philosopher kings, and they shouldn’t think that they are.
Now, the rule of law, of course, isn’t going to wither just because the SCC has decided to change its ceremonial robes. Indeed, they are only worn a few times a year. But when Chief Justice Wagner says that we need new robes that better reflect Canadian identity, he is implicitly saying that he and his eight colleagues know better than the rest of us what Canadian identity is. But they don’t. If wearing something for 150 years doesn’t make it part of the Canadian identity, then how can anything be said to be “Canadian,” except according to arrogance of presentism and the prejudices of the moment?
The point is that the more the members of the SCC overstep their bounds of acting as judges of a general court of appeal for Canada, the more they are daring us to challenge them. And that is what might in the long run be fatal to the rule of law. For if and when we lose respect for the SCC, we lose respect for the rule of law itself.
The philosopher Roger Scruton once wrote that, “We do not merely study the past: we inherit it, and inheritance brings with it not only the rights of ownership, but the duties of trusteeship. Things fought for and died for should not be idly squandered. For they are the property of others, who are not yet born.” Maybe there is a lesson in this for the Supreme Court of Canada.
