On June 23, the Canadian Judicial Council (CJC) rejected the complaint in a four-page letter signed by Jacqueline Corado, acting executive director. She concluded, “Considering that your complaint is unsupported, is largely based on a hypothetical scenario, is manifestly without substance, and does not concern judicial conduct, it does not warrant further consideration by the Council.”
We believe that the perfunctory dismissal of the complaint by the CJC raises cause for concern.
The prime minister and the federal cabinet appoint all federal judges. The prime minister appoints all SCC judges and all chief justices at the federal level. Therefore, political considerations are evident in judicial appointments.
‘Unsupported’
Given the public nature of Justice Wagner’s comments, it cannot be said that the complainant’s position is “unsupported.” Justice Wagner’s statements were published openly in Le Devoir. Sufficient time has passed for him to at least clarify his comments to the CJC and to the complainants. Instead, Justice Wagner has doubled down on his criticisms of the convoy using even stronger language; in his annual press conference in June 2022, he referred to the effects of the winter protests as “deplorable,” saying they should “never happen again.”‘Hypothetical Scenario’
While the CJC’s concern about the hypothetical nature of the complaint against Justice Wagner may have some merit, in that there is currently no case before him, there is a further issue that is not addressed by the CJC.Chief Justice Wagner is the chair of the CJC itself.
As chair, when he is faced with a complaint against his own conduct as chief justice of the Supreme Court of Canada, there must be an open and transparent process to ensure that there is no conflict of interest.
The holder of the highest judicial office of the land should be expected to follow the strictest ethical standards. Justice Wagner himself has acknowledged that “we [judges] simply have to hold ourselves to a higher standard” in order to ensure public trust and respect.
‘Manifestly Without Substance’
Justice Wagner was reported by Le Devoir as stating: “What we have seen recently on Wellington Street here is 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.”According to Justice Wagner, the convoy included “‘remotely guided’ people seeking to bypass the political system.”
The article insisted that “forced blows against the state, justice and democratic institutions like the one delivered by protestors … must be denounced with force, and this by all the figures of power in the country, believes Mr. Wagner.”
‘Does Not Concern Judicial Conduct’
This finding is simply incorrect and obviously so. Under the heading “Judicial Duties,” the Commentary to Part V of the CJC’s “Ethical Principles for Judges,” on impartiality, states that “Judges have a fundamental obligation to be and to appear to be impartial. … Judges should avoid using words or conduct, in and out of court, that might give rise to a reasonable perception of bias” (emphasis added).‘Does Not Warrant Further Consideration by the Council’
As outlined above, the CJC’s determinations are insufficient to deal properly with the complaint. If the council is truly concerned with “fostering public confidence through increased transparency,” then this matter clearly does warrant further consideration. The CJC should do its job properly and analyze what measures could be taken to reassure litigants in relation to the truckers’ protests.“[Politicians] ensure the state responds to what the people need and want, based on the tenor of the times. But the times can go awry, as history has shown us. The judiciary is meant to be a check on that. Judges don’t decide based on what’s popular. We decide based on what’s right, in the context of our legal traditions and rule of law. … At the Supreme Court, of course, we take the broadest view possible, in deciding what is right while considering the context of all Canadians. Our independence is crucial for this. … We can’t be complacent. We must avoid actions that will disrupt the delicate balance Canadians throughout history have worked so hard to get right.”Upon reading statements from the chief justice about controversies, such as the trucker convoy, before evidence has been adduced or tested in the courts, a reasonable person could well conclude that he has already made up his mind. This is certainly not how disputes over fundamental issues such as freedom of speech, freedom of assembly, and the declaration of emergency powers should be determined. That is for full judicial process, not press interviews.
The “delicate balance” of democracy is not served by the chief justice engaging in extrajudicial interviews in the popular press: His settled opinion on central questions should never be uttered publicly before anything has been formally argued in the courts. Judges around the world know this and there are many examples of judges refusing to be drawn into revealing public opinions on matters that “may come before the court.” The reason for this reticence is in the CJC’s rules, but not, apparently, in the chief justice’s conduct.
Further, it should not be lost that the chief justice’s stated opinions on the trucker convoy may have an effect on the current deliberations in the lower courts. And let’s not forget the current context of the judicial inquiry being undertaken by Justice Paul Rouleau on the invocation of the Emergencies Act powers by the prime minister.
Given the importance of the CJC’s mandate, we believe it is time for Parliament to reassess its structure and function. The CJC needs to sort out how it will address complaints involving its own chair so as to give all citizens the assurance of an unbiased judiciary at all levels as well as transparency in the complaints process. In this case, Parliament should review the CJC and its conduct with respect to the perfunctory handling of this complaint.