Chief Justice of the Supreme Court Richard Wagner must recuse himself if there is to be a hearing of the federal government’s appeal in the Emergencies Act case, or risk poisoning the well of justice, writes Michael Higgins.
Concerns Over Impartiality
Wagner has shown such a prejudice toward the Freedom Convoy protesters as to raise questions about his impartiality. Questioning the impartiality of a judge, let alone the highest in the land, is a serious matter. But questions must be asked in light of inappropriate and impolitic comments made by Wagner in April 2022.
In an interview with Montreal’s Le Devoir newspaper, Wagner described the convoy as “a small beginning of anarchy where some people decided to take other citizens hostage, to take the law into their own hands.” The term “anarchy” carries heavy connotations, historically associated with violent overthrow of governments and assassinations of heads of state, such as U.S. President William McKinley in 1901.
Ethical Principles Violated
Yet Wagner should not have said anything at all. The “Ethical Principles for Judges,” which Wagner helped write, states that, “Judges should be cautious in their communications on social media relating to matters that could come before the court.” While the section concerns social media, the principle obviously applies to all media. Wagner must have suspected that the invocation of the Emergencies Act two months prior could well come before his court. His suspicions should have been aroused by the fact that it was an unprecedented action, but also that court challenges were already being considered, with the Canadian Civil Liberties Association saying on Feb. 22, 2022, “We are taking the Government of Canada to court.”
Importance of the Case
Questions must also be raised because of how incredibly important this case is. It concerns the limits of state power; the rights of individuals; the exercise of free expression; and, at its core, what principles a liberal democracy values. Two courts have already ruled that the Canadian government was unreasonable in invoking the Emergencies Act, but the Carney Liberals have appealed to the Supreme Court, which is considering whether to hear the case.
Wagner’s Defense
Last week, Wagner said his comments to Le Devoir did not specifically address the Emergencies Act. Supreme Court of Canada registrar Chantal Carbonneau stated, “Chief Justice 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.” He may not have directly commented on the Emergencies Act, but it’s not possible to claim that the Freedom Convoy protesters are not an issue in the proceedings. It is one of the central events that led to the invocation of the act. The two things are tied at the hip, they are Siamese twins, and can’t be divorced.
One of the matters before the lower courts, and now possibly the Supreme Court, is whether the government acted reasonably in invoking the act. In deciding whether a reaction was reasonable, one must look at the cause. By effectively describing the convoy protesters as anarchists, Wagner has displayed a certain bias. It may be an opinion that many people agree with. It may be firmly held. But if anarchists were roaming the streets of Ottawa, then wouldn’t it have been reasonable for the government to use whatever measures it had at its disposal to stamp them out?
