When Arrogance Supersedes the Neutrality of Judgement

Supporters cheer on drivers in the protest convoy headed for Ottawa from an overpass in Kingston, Ont., on Friday, Jan. 28. (Lars Hagberg/The Canadian Press)

 

"I think it's important for the chief justice to review the circumstances and make his own determination about whether it would be appropriate or whether it could give rise to a reasonable apprehension of bias by any of the litigants."

Alexander Boissonnea-Lehner, lawyer for Canadian Frontline Nurses litigants

 

"Chief Justice [Richard] Wagner has advised that he did not, at any time, either directly or indirectly, comment on the Emergencies Act ... or matters at issue in the proceedings."

"Chief Justice Wagner has considered the certificates and letter, and has concluded that there is no actual or reasonable apprehension of bias that would require  his recusal under the applicable legal test."

Chantal Carbonneau, registrar, Supreme Court of Canada

The chief justice of the Supreme Court of Canada Richard Wagner   Photo by Via Supreme Court of Canada

 

What would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude."

"Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

Test of apprehended bias 

When a  convoy of truckers arrived and assembled near the Parliament Hill Precinct to showcase their dissatisfaction with many of the government's COVID 19 edicts, including a provision that would revoke the licenses of long-range truckers who refused COVID vaccinations, their purpose was to demonstrate citizens' right to free speech, assembly and to protest government actions that they construed as impeding their rights under constitutional rights and freedoms.

 

The-then Liberal government of Justin Trudeau was dead-set against sending out an emissary to meet with the truckers, to discuss the situation to calm the troubled waters before matters got out-of-hand. Which it did, according to nearby residents whose peace was shattered by the deliberate constant honking of big rigs' horns, and the often-celebratory atmosphere that prevailed as the congregant truckers socialized among themselves, their trailers stationary for weeks.

 

Locals complained about the noisy crowded conditions, truck fumes and interruptions in their daily routines given the presence of so many out-of-towners. In exercising their right to freedom of assembly and free speech, what became known as the Freedom Convoy was hugely unpopular locally, despite a good level of support by other locals. The federal government panicked at the presence of so many Canadians scornful of their political leaders' autocratic rules, and invoked the Emergencies Act.

Police move in to clear downtown Ottawa near Parliament Hill of protesters after weeks of demonstrations.  THE CANADIAN PRESS/Cole Burston

 

That forced other truckers to haul away the offending trucks, forced police to take action they had already taken to address the situation, forced the dispersal of all those citizen-truckers and their supporters from across Canada who assembled to express their frustration with the government. In the process, banks were authorized to freeze people's bank accounts who were involved in the convoy, and the government brought legal action against those they considered to be convoy leaders; a turn of event that amounted to unjust and undue persecution.

 

The invocation of the Emergencies Act, which was never, ever meant to be used for such a purpose, became the subject of other lawsuits that balked at government overriding the limits of state power. That response to rights of citizens to exercise free expression was not the action of a liberal democracy. Around that time, in 2022, the Chief Justice of the Supreme Court of Canada described the participants in the convoy as 'anarchists'. He failed to heed the warning that "Judges should be cautious in their communications on social media relating to matters that could come before the court", a caution that he himself helped write in Ethical Principles of Judges.

 

Now, because two courts ruled that the federal government was unreasonable in invoking the Emergencies Act, the current Liberal government under prime minister Mark Carney has appealed to the Supreme Court, now considering whether to hear the case. According to lower courts, the protesters' Charter right to free expression had been breached. The Federal Court of Appeal cited a case that held that the meaning of freedom of expression "is to ensure that everyone can manifest their thoughts, opinions ... however unpopular, distasteful or contrary to the mainstream".

 

A fence cordons off Parliament Hill in Ottawa on Feb. 21, 2022, after police cleared truckers from the area following the invocation of the Emergencies Act.  THE CANADIAN PRESS/Cole Burston

 

Yet, in 2022, the Chief Justice of Canada's Supreme Court relieved himself publicly of his personal opinion that some of those in the Freedom Convoy protests were 'remote-controlled' people attempting to short-circuit the government's politics, which "does not fill me with good feelings. What we saw recently on Wellington Street, here, is the budding start of anarchy where some people decided to take other citizens hostage, to take the law into their own hands, to disregard the system … I find that worrying", he said in an interview.

 

Having said which, to be perfectly logical, ethical and principled, he should be more than willing to recuse himself from the Supreme Court's hearing of the case, should it decide to do so. Yet he adamantly claims he has no reason to do such a thing. Claiming neutrality, non-bias as his defence, a defence more than neutralized by his obvious bias expressed in a public forum. An expression totally unbecoming his position as a jurist, infinitely more so as the Chief Justice. 

 

He had gone on to utter additionally 'non-biased' statements respecting the convoy, such as stating that the downtown Ottawa 'occupation' was partially fuelled by a "certain ignorance", a "bad understanding" of Canadian law. The impact of the Freedom Convoy's blockades on  Ottawa business and individuals -- particularly "the most vulnerable" was "deplorable". But of course no one should expect that in full compliance and respect for justice, that this man is prepared to recuse himself honourably.  

"Judicial independence is not the private right of judges. It is the foundation of judicial impartiality and a constitutional right of all."

"[Judges should] be mindful of the ways in which their conduct would be perceived by reasonable and informed members of the community and whether that perception is likely to lessen respect for the judge or the judiciary as a whole."

"[Judges should] avoid conduct which could reasonably cause others to question their impartiality." 

Ethical Principles for Judges