On Tuesday, Cardus vice president Ray Pennings appeared on CHQR News Talk 770, speaking with hosts Roger Kingkade and Rob Breakenridge about the recent appointment of Justice Bradley Miller to the Ontario Court of Appeal. Pennings joined the show from Washington, where he is presenting at the 27th World Congress of the International Association for the Philosophy of Law and Social Philosophy.
The appointment of Justice Miller has featured prominently in the news this week, with a notable feature in Saturday’s Globe and Mail. The appointment has garnered critical attention because Justice Miller holds views that don’t align with decisions of the current Supreme Court. Most prominently, Miller holds to the legal philosophy of originalism and has criticised the current interpretation of Section 7 of the Charter of Rights, which he sees as inhibiting the government’s ability to defend laws that protect the “morally valuable aspects of a national culture and its morally valuable institutions.”
Pennings’ interviewers didn’t waste any time before cutting to the issue: “How is the public to interpret these dissentions [from current Supreme Court decisions] when they arise?” In essence, why would we appoint someone to the Court of Appeal who holds views differing from the majority?
In his response, Pennings raised several key points. First, the debate between originalism and more liberal forms of constitutional interpretation is hardly new. Nor is Justice Miller alone in his legal philosophy. In regards to Miller’s criticism of Section 7 of the Charter, and the role of the Supreme Court in Canadian society, Pennings observed:
These debates have been going on for hundreds, literally thousands of years, between the balance between individual rights and community rights, and where the line should be in making decisions... Within the legal profession there are a variety of perspectives, and I actually think that it is healthy that we have judges coming from different perspectives that reflect a cross-section of society.
In other words, why are we so afraid of different opinions?
This question becomes more poignant when we consider the kind of questions that the Supreme Court has recently decided. Pennings pointed out that there is more to law than just rules; behind the debates are philosophical questions about what we value as a society.
Legal decisions don’t just involve law, as narrowly defined, they come from a view of the human person. Historically, life has been felt to be the greatest value in law. ... The Carter decision says no, choice is the greater value than life: “It is more important for me to be able to choose to live or not to live, than to actually live itself.” That’s a deep philosophical question.
When it comes to the most controversial issues, there is no question that Canadians can benefit from a diversity of views—especially those coming from a long and well-respected tradition of legal philosophy. Perhaps the media storm stems from the fact that Justice Miller holds somewhat unpopular views on such topics. But as the British philosopher John Gray wrote, the goal of a liberal democratic government should not be the creation of a social consensus, but the nurturing and protection of diversity.
Canadian society, like societies throughout history, is constantly evolving. The past decade has seen the legalization of same-sex marriage, prostitution, and euthanasia—all of which would have been unthinkable 50 years ago. Our parliament exists, in many ways, as a forum in which to discuss and debate the changing landscape on which we build a common society. Recently the courts have played a more prominent role than parliament in bringing social change to law.
“That debate is real in Canada, not just between the institutions of government, but within courts, within parliament,” said Pennings. “What we are witness to is really a broader social debate that is simply finding expression in particular decisions.”
Given the increasingly prominent role of the courts in bringing change to law in Canada, it is important to remember the courts are the institutions tasked with protecting minorities and thus protecting diversity. So a little more diversity of opinion reflected in the courts themselves might be of benefit to Canadians.