“The trucker convoy that protested COVID vaccine mandates in Ottawa in February has been both joyously acclaimed and bitterly criticized. According to an April 9 article in ‘Le Devoir’, Supreme Court Chief Justice Richard Wagner has added his voice to those who have condemned it. If the account in ‘Le Devoir’ is accurate, his comments starkly illustrate the degree to which judges feel at liberty to embrace ‘progressive’ {actually, regressive} consensus at the expense of judicial neutrality.
“In mid May, a group of lawyers filed a complaint with the Canadian Judicial Council, arguing that Wagner’s criticisms undermine confidence in the impartiality of the courts, in particular on the issue of the government’s invocation of the ‘Emergencies Act’ and the right to protest.
“The trucks had been in Ottawa for two weeks when, on Feb. 14, the federal government invoked the ‘Emergencies Act’. It cited “the threat or use of acts of serious violence” as the rationale, even though the protests had been largely peaceful throughout and the government had received no intelligence about impending violence or the presence of weapons. Within a few days, police had cleared the trucks and supporters away and the bank accounts of several hundred Canadians had been frozen. On February 23, the use of the ‘Emergencies Act’ was revoked {when it looked as if the Senate was not going to approve it}. At least four legal challenges to the government’s invocation of the act have been launched, one or more of which could easily wind up on appeal to the Supreme Court, with the chief justice sitting in judgment on the case.
“In his interview with ‘Le Devoir’, Wagner characterized the protest on Wellington Street, where Parliament and the Supreme Court are located, as “the beginning of anarchy where some people have decided to take other citizens hostage”. The article reports Wagner as having declared that
“forced blows against the state, justice and democratic institutions like the one delivered by protesters … should be denounced with force by all figures of power in the country”.
“To become a judge means to take on onerous responsibilities. “Justice should not only be done”, Lord Chief Justice Hewart famously said in a 1923 UK King’s Bench judgment, “but should manifestly and undoubtedly be seen to be done”. The Canadian Judicial Council, which oversees the conduct of judges on the country’s highest courts, and which the chief justice of the Supreme Court chairs, states in its ‘Ethical Principles for Judges’ that
“statements evidencing prejudgment … may destroy the appearance of impartiality”,
and so judges
“should avoid using words or conduct, in and out of court, that might give rise to a reasonable perception of an absence of impartiality”.
“In a 2015 decision in which Wagner himself participated, the Supreme Court agreed.
“Judges are required — and expected — to approach every case with impartiality and an open mind”,
the court wrote, and must be perceived to do so. Traditionally, judicial comment on political matters is regarded as inappropriate. In 2016, U.S. Supreme Court Justice Ruth Bader Ginsburg apologized for making “ill-advised” criticisms of Donald Trump, who at the time was the presumptive Republican presidential nominee.
“How then are the chief justice’s comments to be explained? At his first press conference in 2018 as the court’s chief, as reported in the ‘Toronto Star’, Wagner agreed that his court was “the most ‘progressive’ in the world”, with a leadership role to play in promoting (‘progressive’) moral values {and political policies}. Wanjiru Njoya, a legal scholar at the University of Exeter and formerly at Queen’s University in Kingston, has strongly criticized the fact that in the modern legal firmament, the range of what is considered reasonable has been narrowed to ‘progressive ideals’ alone. In the courts and within the legal academy, as she puts it, the dominant perspective “delineates the boundaries of what ‘progressives’ consider to be ‘reasonable’, measured, and balanced interpretations of the demands of justice”. Perspectives falling outside these boundaries, she says, are perversely defined as unreasonable and therefore regarded as not worthy of respect.
“Through a ‘progressive’ lens, in other words, impartiality means having an open mind to all ‘reasonable’ perspectives — but only ‘progressive’ perspectives are ‘reasonable’. ‘Progressivism’ is the ideology of collectivism {and is therefore objectively ‘regressive’}, ‘equity’, ‘wokeness’, ‘safetyism’, and the managerial state. COVID has been’progressivism’s perfect storm and sweeping pandemic bureaucracy its pinnacle achievement. Yet where the line is to be drawn between individual liberty and collective responsibility is a matter of legitimate dispute. Confidence in the judiciary depends on whether people perceive courts to be genuinely neutral, not merely within a narrow band of ‘progressive’ consensus but on all matters of controversy within a pluralistic society.
“Had the chief justice declared the truck convoy to be courageous, vaccine mandates illegitimate, and invocation of the ‘Emergencies Act’ an outrageous violation of civil liberties, the federal government would justifiably perceive that he had prejudged the case. Instead, his words reflect the government position that the protest was beyond the bounds of civilized behaviour and was properly crushed with state force. The question is not whether his views are correct, but whether they are premature and in the wrong forum. Should any of the ‘Emergencies Act’ challenges make their way to the Supreme Court, the chief justice will sit in judgment on a dispute about which he appears to have already formed an opinion.
{He needs to recuse himself, but his activist inclinations make that honourable move highly unlikely.}
“Having made his public comments, the chief justice could announce that he will recuse himself from the case to avoid a reasonable perception of bias. However, Wagner is not merely one of many federally-appointed judges, but the chief justice of the highest court in the land. His opinion carries influence that cannot be nullified by simple recusal. The harm done to judicial impartiality on the issue of the invocation of the ‘Emergencies Act’ cannot easily be remedied.”
–‘Supreme Court undermined by chief justice condemning freedom convoy’,
Bruce Pardy, National Post, June 1, 2022
(Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University. He was one of the lawyers on the complaint filed with the Canadian Judicial Council.)
FEATURE Image: Richard Wagner, swearing-in ceremony as Supreme Court justice in Ottawa in 2012. (BLAIR GABLE-REUTERS)
“Thirteen lawyers have sent a complaint letter to the Canadian Judicial Council (CJC) about comments made by Supreme Court of Canada Chief Justice Richard Wagner regarding the trucker convoy that staged large-scale protests against COVID-19 mandates in downtown Ottawa earlier this year.
“The seven-page letter quotes a full page of excerpts from an April 9 ‘Le Devoir’ article in which Wagner said the convoy was
“the beginning of anarchy where some people have decided to take other citizens hostage, to take the law into their own hands, not to respect the mechanism. … That, I find that worrying”.
“Wagner characterized the convoy protests as a “circumstance that could undermine our principles such as judicial independence, the rule of law, institutions”. He said the protests included people of “good faith” but also others who were “remotely guided” with “misunderstanding” and “a certain ignorance” of the rule of law, and who were seeking to bypass the political “system”.
“It doesn’t inspire good feelings in me. I find that disturbing”,
Wagner said.
“The ‘Le Devoir’ article adds,
“Forced blows against the state, justice and democratic institutions like the one delivered by protesters to the doors of the Prime Minister’s office and … the Supreme Court of Canada … must be denounced with force, and this, by all the figures of power in the country, believes Mr. Wagner”.
‘Appearance of Partiality’
“In February 2022, four groups filed notices of application with the Federal Court to review all matters related to the trucker convoy to determine whether the invocation of the ‘Emergencies Act’ was justified. The lawyers expressed concern over the possibility that one or more of those applications may reach the Supreme Court and be heard before Wagner.
“[T]he Chief Justice’s views expressed in the Le Devoir article fit within the legal definition of a reasonable apprehension of bias and an appearance of partiality. We submit that the Chief Justice’s remarks will undermine Canadians’ confidence in the independence of the Supreme Court of Canada in particular, and in the judiciary, generally”,
the lawyers’ letter read.
“We further submit that the confidence of the litigants in the capacity of the judicial system to impartially and fairly determine the issues raised in the four (4) Notices of Application filed, plus any other Notices of Applications to be filed, will be undermined.”
“In their letter, the lawyers cited the CJC’s own ‘Ethical Principles for Judges’, whose latest edition was published in 2021. The principles are written for federally-appointed judges, including those on the Supreme Court of Canada.
“The principles say that judges must “ensure that their conduct at all times maintains and enhances confidence in their impartiality and that of the judiciary” and “avoid using words or conduct, in and out of court, that might give rise to a reasonable perception of bias”.
“The letter also cited a section from a United Nations publication titled “Commentary on the Bangalore Principles of Judicial Conduct”.
“A judge should not involve himself or herself inappropriately in public controversies”,
the commentary said.
“If a judge enters the political arena and participates in public debates—either by expressing opinions on controversial subjects, [or] entering into disputes with public figures in the community, … he or she will not be seen to be acting judicially when presiding as a judge in court.”
“The ‘Epoch Times’ reached out to Wagner for comment but did not hear back by the time of publication.
“Queen’s University law professor Bruce Pardy was one of the signatories, as was lawyer Keith Wilson, who has represented some of the Freedom Convoy protest participants.
“The CJC is composed of Canada’s 41 chief justices and associate chief justices. It is chaired by Chief Justice Wagner himself. It was created in 1971, partly in response to the case of a judge who was charged with a criminal offence but the charges were later dismissed.
“Since 1990, the CJC has heard 15 complaints. The last one was made in 2017 against Superior Court of Ontario Justice Frank Newbould. Newbould announced his retirement two days after the CJC concluded that an inquiry should be launched, leading to termination of the proceedings.”
–‘Canada’s Top Judge Spoke Bias Against Trucker Convoy, Lawyers Say’,
Lee Harding, Epoch Times, May 29, 2022
See also:
‘Pro-Quebec Bias on Canada’s Political Court’ (New Chief Justice) {January 2, 2018}:
“Relying on a discriminatory tradition that favours Quebec, the Prime Minister has appointed another Quebecker as Chief Justice of the Supreme Court of Canada…”
‘Bad For Democracy’ (Supreme Court) {August 26, 2016}:
“Nine people — unelected people — apparently have the power to determine “what’s best for Canadian society”. With no reference to “the law”…”
https://endracebasedlaw.wordpress.com/2016/08/26/bad-for-democracy/
Canadians For Legal Equality BLOG 