On Wednesday, May 10, MP Maurice Vellacott resigned from the parliamentary committee he headed because of allegedly“controversial” comments he made to a CBC reporter the previous Friday. This tawdry affair was entirely orchestrated by our public broadcaster, the CBC, in an attempt to tarnish the good name of a fine politician. And, although Vellacott has been humbled by this manufactured scandal, it is the reputation of the CBC, and indeed, the Supreme Court itself, that will suffer in the long run.
Vellacott told a CBC reporter (who, according to one eyewitness, practically chased him to the elevator) that, “I don’t think it is the role of the judge … to play the position of God” and that Chief Justice Beverley McLachlin “herself said actually that when they step into this role that suddenly there’s some kind of mystical power that comes over them, which everything that they’ve ever decreed is not to be questioned.” At most, this is an interpretation of the chief justice’s position. Vellacott’s critics argue that it is entirely baseless.
But what did McLachlin actually say? Speaking at a conference in New Zealand, the chief justice of Canada said that the “rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.” She went on to explain how these “unwritten constitutional principles” can be “identified”: “Where, having regard to convention, written provisions and internationally affirmed values, it is clear that a nation and its people adhere to a particular fundamental principle or norm, then it is the court’s duty to recognize it.”
The chief justice, however, assumes what she is trying to prove: by using words like “recognize” and “identify” the chief justice places judges beyond a realm of interpretation that is subject to error, correction and refinement. Judges, in her view, do not interpret, they merely “see.” She calls this task of discernment “legitimate judicial work;” Vellacott calls it “some mystical kind of power.” But often, the question of “recognition” is precisely what is at issue as it is not clear what “fundamental principle or norms” reign supreme. Same-sex “marriage” advocates, for instance, claim they merely want such unions to be “recognized” and the Supreme Court agrees. Pro-life advocates, on the other hand, want recognition for the rights of the unborn, but the judges remain unmoved.
And so, the controversy is really about an event which is impossible in the chief justice’s line of work: a conflict of interpretations. When she finds an interpretation she doesn’t like – that, she would say, does not reflect the universal norms, etc. – she simply reverses it. It must come as a shock to find that the court of public opinion is not so easily swayed.
The key question is whether Vellacott’s remarks constitute calumny or whether they merely articulate the “unwritten” part of what Chief Justice McLachlin sees as a “norm.” It is a question that should be widely discussed in the Canadian media. But for the CBC, the only question is how Vellacott should be punished for even broaching the topic. Indeed, the real outrage here is that was no real outrage. The CBC used the tiniest sliver they found to play ‘gotcha’ with a supposedly controversial MP. Vellacott’s so-called “gaffe,” at worst, overstates the case. But, our national broadcaster saw fit to play, replay, and repeat the story about his comments until pressure from the opposition parties, and in his own party, mounted and he was forced to apologize.
This glaring lack of proportion is bad enough. But the over-reporting of this non-story is especially disappointing due to the under-reporting of a real scandal involving Vellacott earlier this year. During the January election, a call placed from the campaign office of Chris Axworthy, his Liberal opponent, in a call-in show, falsely accused Vellacott of sexual assault. This despicable event was not only lost in the election news cycle, but the CBC was so eager to conceal the story, it ran it with the bland, anodyne headline: “Candidate considers lawsuit over false sexual assault allegation.” The story was buried under the CBC’s own tedious headline.
Since the election of the Tories, some had thought that the CBC would be eager to try real journalism once again. Alas, no. Rather than being indispensable to Canadian taxpayers, its priority is to convince its ever-dwindling viewership of its own indispensability. So (in a moment of unintentional self-parody), instead of hard-nosed reporters asking tough question, the CBC has been reduced to picking casual talk out of conservatives on Friday afternoons. To pass themselves off as serious journalists, CBC reporters pulled a silly stunt on an unsuspecting MP and, in attempting to shore up their credibility, they did something ridiculous.
Despite the CBC’s attempts to de-legitimize Vellacott’s comments, one institution has taken particular notice of them: the Supreme Court itself. The office of the chief justice actually responded directly to Vellacott’s claims. McLachlin’s office stated she “has always said it is a judge’s role to interpret and apply the law.” (This statement, as a reversal of her previous positioning, casts some doubt on her respect for precedent). Even though the CBC thought Vellacott’s comments were beyond the pale, McLachlin herself thought it necessary to backpeddle on her remarks. It seems that even the chief justice knows these concerns resonate with Canadians – even if the CBC does not. In fact, the CBC’s artificial outrage over Vellacott’s comments comes as these sentiments become more and more widespread. As Liberal MP John McKay put it earlier this year: “What is the Supreme Court but a priesthood served by acolytes in black robes? If that is not a description of a religion, I do not know what is.” (Where was the CBC then?)
For now, Maurice Vellacott is chastened and has retracted part of his comments. But the curious jurisprudence of the chief justice and the questionable journalism of the CBC can only go unquestioned for so long. Both the Supreme Court and the Canadian Broadcasting Corporation are public institutions and neither one is exempt from serious, thoughtful criticism. The recent outrage does not illustrate the illegitimacy of these questions, but instead, proves their necessity.