In this week’s episode of Inside policy, we’re taking a look at institutional trust and legitimacy in Canada through a case study on the courts.

A healthy organism is one that is resilient. You don’t stay healthy by staying perpetually indoors, or obsessively washing your hands – avoiding germs and stresses at all costs. Robust health is a function of both healthy practices, and of resiliency, which is the product of undergoing and overcoming challenges and stressors.

Institutions are similar. They do not stay healthy by sealing themselves off from criticism. They earn and maintain trust by demonstrating competence and resilience under scrutiny.

Trust in institutions is waning in Canada and across the western world. Canada’s courts are no exception, and perhaps for good reason, as courts now play a major role in our most contested political and moral debates.

On this week’s episode of Inside Policy talks, McMaster University Professor of Political Science Andrea Lawlor discusses her research on public opinion and the courts in Canada. She notes that courts are not fragile, but trust in them is. We need healthy, respectful debate and critique of courts, legislatures and the executive alike – in good faith – to strengthen the quality of our public institutions.

We discuss and importance distinction between judicial independence and levels of public scrutiny.

The former means judges must be free from political interference when deciding cases. It means security of tenure, financial security, and institutional safeguards that protect impartial adjudication.
It does not mean that courts, judges, or judicial reasoning are beyond public scrutiny.

In a constitutional democracy, courts exercise public authority. And when they decide questions involving criminal justice, assisted suicide and euthanasia, religious freedom, the definition of marriage, equality rights, democratic rights, or the notwithstanding clause, they are unavoidably participating in questions of public consequence.

As they have done so on an increasing number of contested policy debates – and when those outcomes land consistently on one part of the political spectrum – it should be unsurprising that their decisions are being increasingly scrutinized.

A healthy constitutional order requires both judicial independence and serious, reasoned criticism – one of the animating concerns of our Judicial Foundations project.

In this episode, we get into this tension, and the trends in public opinion of the judiciary and the courts in Canada