Chief Justice Wagner of the SCC Showed Clear Biases

And the Canadian Judicial Council's minion staves off complaints via a form letter

This is a reprint of an article which was first published here in The Western Standard, with a few updates.

High-level judges in the US have become so obsessed with avoiding the appearance of having pre-judged any issue that we recently witnessed the bizarre spectacle of Supreme Court nominee Ketanji Brown Jackson refusing to answer the question “What is a woman?”

By contrast, the Chief Justice of the Supreme Court of Canada (SCC), Richard Wagner, recently demonstrated that he is at the opposite end of the spectrum: willing to opine freely and repeatedly on issues that might well turn into cases that he will have to hear in his courtroom.

Wagner made it clear in an April interview with the Montreal newspaper Le Devoir, followed up by a June interview with the CBC, that he harbours strong opinions about - indeed, one might say animosity towards - Freedom Convoy protesters who went to Ottawa during January and February, 2022.

His interviews are sprinkled with disapproving language such as: “the beginning of anarchy”, and “some people have decided to take other citizens hostage”. According to a paraphrase in Le Devoir, he declared that “forced blows against the state…like the one delivered by protestors…must be denounced with force…by all the figures of power in the country”. He apparently considers himself to be one of those figures of power who are duty-bound to forcibly denounce the protestors.

In the CBC interview, Wagner stated his belief that “at times like these…lies and conspiracies spread like wildfire,” and “the demonstrations that took place in Ottawa this winter stemmed in part from this disinformation.”

I am one of thirteen individuals - mostly, but not all, lawyers - who filed a complaint against Chief Justice Wagner with the Canadian Judicial Council (CJC), the body tasked with ensuring that judges in Canada behave themselves in proper judicial fashion. Our complaint pointed out that at least four lawsuits already commenced in Federal Court challenge the invocation of the Emergencies Act in response to the convoy. While the government may try to sidestep this litigation by arguing that it’s moot now that the “emergency” has been rescinded, the capriciousness of Canada’s perpetually changing rules is motivating the applicants to carry on litigating, in the hopes of getting the constitutionality of these measures settled once and for all.

It therefore seems likely that several such cases - and others, possibly including Tamara Lich’s criminal charges - will ultimately end up before the SCC, where Justice Wagner will have to rule on them. His ability to do so in an unbiased fashion is very much in doubt. Ms. Lich, for example, might have a “reasonable apprehension of bias” when she contemplates the possibility of Wagner judging her case after the remarks he made.

In fact, he appears to have obtained most of his information about what went on during the Freedom Convoy from the same news sources to whom he spouted his opinions. He did not follow the famous legal maxim “Audi alteram partem” (hear the other side) before regaling the public with his beliefs. There’s no indication within his interviews that he had the slightest awareness of there being any other side to the story except his own. Andrew Lawton’s book “The Freedom Convoy: The Inside Story of Three Weeks that Shook the World” hadn’t even been published back in early April when Le Devoir’s interview came out, so Wagner couldn’t have looked at events from Lawton’s perspective. 

“Unprecedented” has become an almost overworked word these days to describe what has been happening in Canada. However, in my opinion, Wagner’s conduct was both unprecedented and scandalous. In almost half a century of watching the SCC since I began law school in 1973, I cannot recall a single instance of a judge speaking his mind on live legal issues with such obvious prejudice.

His conduct is even more egregious when viewed in light of the code of conduct entitled “Ethical Principles for Judges” published by none other than the CJC itself, with Wagner having personally written the foreword. The fifth principle, that of impartiality, is embodied in these two rules: 

“A. Judges ensure that their conduct at all times maintains and enhances confidence in their impartiality and that of the judiciary.

“B. Judges avoid conduct which could reasonably cause others to question their impartiality.”

The manual elucidates: “Judges should avoid using words or conduct, in and out of court, that might give rise to a reasonable perception of bias. The expectations of litigants are high…A judge’s remarks or tone may diminish the judge’s perceived impartiality…Therefore, judges should ensure that their comments or conduct do not provide reasonable grounds for a perception of bias.”

But there’s a built-in structural problem in the CJC: namely, the person who heads up the Council just happens to be the Chief Justice of the SCC. We thirteen complainants were curious to see how Wagner would react to our concerns about his conduct. Would he admit that he had been wrong to give those interviews? Would he agree that, having disclosed his obvious biases about the Freedom Convoy, he should henceforth recuse himself from all cases involving the convoy? Would he even take the more extreme option open to the CJC of reporting his misconduct to the Minister of Justice so that Parliament could determine whether he should be removed from the bench?

Not a bit of it. With spectacular arrogance, the CJC responded to us in a letter written by one Jacqueline Corado, the Acting Executive Director. She took it upon herself to invoke an “early screening process” which she claimed to have within her responsibility. She dismissed our complaint - incredibly - as not even concerning judicial conduct, and therefore not warranting further consideration by members of the council. She seemed to be doing everything within her power to protect her boss from public criticism.

It’s possible that Wagner and the 40 other members of the CJC were never even told about our complaint - that Ms. Corado made it “go away” on her own initiative without getting an opinion from anybody else. The piece of sophistry she penned to us is an utterly unsatisfactory response that has already triggered two law professors in Australia to call for Canada’s parliament to restructure the CJC so that it can deal objectively with complaints about its own members.

Did Ms. Corado really think that we complainants would simply accept her answer and leave this problem alone? That’s certainly not my intention. We took the proper, formal steps to have the issue dealt with through normal legal channels, only to be intercepted by a CJC minion and rebuffed with no further recourse.

Therefore, I think this issue needs to be aired as widely as possible, so that the other 40 members of the CJC hear about the conduct of the Chief Justice, if they hadn’t already, and form their own opinions about it. I find it hard to believe they will be unanimous on this subject. In fact, I wonder what the other eight justices of the SCC think about their boss’s public interviews. None of them have spoken out on either side of the convoy subject. I’ll bet they’re not all in agreement with Wagner’s comments. But even those who might personally agree with him have had the good sense to keep mum about it until they’ve had the opportunity to hear all the relevant evidence, from both sides, in a proper forum.

Having failed to get a reasonable response from the organization tasked with responding, I believe there’s no other option than to get the Canadian public, and the rest of the world, involved. We’ve seen in the past that the courts are not completely impervious to public opinion. Ordinary Canadians and international jurists need to know about this incident and rain down upon the CJC the ridicule that its response so richly deserves. If you agree, please share this article through avenues that will give it wide circulation.

With the CJC so fastidiously sweeping hypocrisy under the carpet, it’s no wonder that more and more Canadian citizens are becoming convinced that the justice system is corrupt.

POSTSCRIPT: After the foregoing was published in the Western Standard, I learned from at least two other people that they had also filed complaints with the CJC about Wagner’s comments and had received similarly worded letters from Ms. Corado. In one instance where a PDF of Ms. Corado’s response was forwarded to me, several paragraphs of her reply were actually identical to the reply my colleagues and I received. One of the most serious gaffs ever made by a justice of the SCC was dealt with by a form letter! The CJC has made itself into a farcical institution.