Ben Woodfinden: Finally — new Supreme Court justice doesn’t think he’s above Parliament

Prime Minister Mark Carney has named Manitoba Chief Justice Glenn Joyal to the Supreme Court. Photo by Adrian Wyld/The Canadian Press/File

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Mark Carney has named Manitoba judge Glenn Joyal to the Supreme Court, and the appointment is good news for a reason that has little to do with how he will rule in specific cases. Joyal is that rare thing on a high court: a judge who thinks judges have become too powerful. He has argued for years, at some professional cost, that the bench has crept into territory belonging to the legislatures, and that the cure is more judicial modesty, not less. That is exactly how a judge ought to think, and is sadly in rare supply on the benches these days. 

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The Chief Justice of Manitoba’s Court of King’s Bench has made his case in the open, not only in his rulings. It goes back to a master’s thesis from the early Charter years with the almost too-perfect title “Traditional Canadian Political Culture Adrift in the Era of the Charter.” His worry about what the Charter did to Canadian self-government is as old as the Charter itself, and has only grown truer since. 

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His fullest statement is a 2017 keynote to the Law and Freedom Conference. He likened himself to a timid church organist sneaking off to play with subversive jazz musicians, then made his case: the growth of judicial power since 1982 has left the legislative branch in “a diminished and even inferior role.” The Charter’s framers, he argued, deliberately refused the American language of “due process” so that Section 7, which protects the “right to life” and “security of the person” could not become, as one put it, “anything that could attract five votes on the Supreme Court.” Read expansively anyway, Section 7 became “the single most fertile source for the discovery of new rights.” His remedy is not to strip courts of power but to have them discipline themselves, ruling with “principled restraint” rather than appetite. A rare judge, arguing for his own modesty. 

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The proof that this is conviction and not just a pose is that Joyal’s most consequential ruling cuts against even the people who share his diagnosis. In the 2021 Gateway Bible Baptist Church cases, seven churches backed by the Justice Centre for Constitutional Freedoms challenged Manitoba’s pandemic limits on worship as a violation of religious freedom under Section 2 of the Charter. His admirers expected him to strike the orders down as overreach. He upheld them. He deferred to the elected government, writing that courts owe “a requisite judicial humility” and lack the expertise to second-guess decisions taken in real time for public safety. The Court of Appeal agreed; the Supreme Court denied leave. In a companion ruling he refused to invent an unwritten principle that would have let him strike it down for giving too much power to an unelected health officer. And he did so after learning that the head of the group arguing the case had hired a private investigator to tail him, hoping to catch him breaking the rules he was weighing. That intrusion, he said, would not move him, and it did not. A judge chasing his own result would have struck the orders down and called it freedom. Joyal did the harder thing, and left the legislature to its elected role rather than supplant it.