Canada’s Judges Must Guard Against Bias, Say Lawyers

13 lawyers lodge complaint about Supreme Court Chief Justice Richard Wagner’s comments on trucker convoy protest
By Lee Harding
Lee Harding
Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.
June 1, 2022 Updated: June 1, 2022

More could be done to ensure judges act without bias, say the lawyers who wrote a complaint letter regarding comments made by the Supreme Court of Canada chief justice about the truckers’ convoy.

Queen’s University law professor Bruce Pardy and retired Ontario lawyer Karen Selick spoke to The Epoch Times about accountability among Canada’s judges. They are two of the 13 lawyers who complained to the Canadian Judicial Council (CJC) about Supreme Court Chief Justice Richard Wagner’s remarks on the trucker-led protest against vaccine mandates in Ottawa earlier this year.

The May 16 letter quoted an April 9 Le Devoir article in which Wagner called the convoy “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. … I find that disturbing.”

Selick, who practised law for 38 years, says she was “startled” by Wagner’s comments.

“I’ve never seen any judge speak out in such a biased manner about a contentious issue that is likely to be heard by the court,” she said.

“He shouldn’t be talking about this and clearly taking one side in a very live controversy. … I think he should have been able to foresee that there would be litigation on this issue. I think there already had been.”

The letter said there are currently four notices of application to the Federal Court in relation to the convoy, which will potentially end up before the Supreme Court.

In the article, Wagner characterized the convoy protest as a “circumstance that could undermine our principles such as judicial independence, the rule of law, institutions.”

The article added, “Forced blows against the state, justice and democratic institutions like the one delivered by protesters … must be denounced with force, and this by all the figures of power in the country, believes Mr. Wagner.”

Selick doesn’t share Wagner’s interpretation.

“I think it’s far more credible to believe that the federal government’s reaction to it [the trucker convoy]—that is, the invocation of the Emergencies Act—was much more clearly questionable [regarding] democracy and the rule of law,” she said.

“Attempts by the media to portray [convoy protesters] as treasonous or revolutionary or trying to overthrow the government—those are just false, because they’d never spoken that. They were always just about, ‘We want to be able to drive our trucks without having a vaccine.’”

The Epoch Times reached out to Wagner for comment but did not hear back.

The CJC is composed of Canada’s 41 chief justices and associate chief justices. It was created in 1971 partly in response to the case of a judge who was charged with a criminal offence. Since 1990, the CJC has heard 15 complaints and has recommended judges be removed from the bench.

In 2009, the council recommended that Justice Paul Cosgrove be removed from the Superior Court of Ontario, but he resigned before Parliament could vote on his removal.

As Wagner himself is the chair of the CJC, Selick said she wonders what will happen to their complaint, and she is unsure “what the range of possible penalties might be.”

“It’s not very likely that the chief justice is going to order that he [himself] be removed from the bench,” she said, adding that “I certainly think that he should recuse himself from any cases where these issues are going to be argued. … You should not be obviously adjudicating the complaint against [yourself].”

Judiciary and Public Confidence

If the CJC recommends removal of a judge, Parliament will vote on whether to do so. In Canada, Parliament can vote to remove a judge but doesn’t vote to install them.

Law professor Pardy says there are advantages to holding hearings on judges and putting their appointment to a vote by elected officials, as is done in the United States.

“The American process is highly politicized, and that’s often been the criticism of it. On the other hand, it is transparent—or at least more transparent than ours. And I think, on balance, that’s more good than bad because what you get to see is a potentially more accurate picture of the person as a jurist. You know their views on judicial philosophy and their political inclinations,” Pardy said.

“That strikes me as a more honest way to go about things than to pretend, as we do in Canada … that we don’t have political courts, which is obviously not true. … The party who is in power tends to appoint people who are sympathetic to their political inclinations.”

Pardy says it’s going too far to assume that judges who donate to a political party would side with that party’s government in a court dispute. He does, however, believe that active campaigning on issues or for candidates is inappropriate.

“For the public to have confidence in the courts, they have to believe that the decision being rendered in a court is based upon the evidence that is given in the courtroom—inside the courtroom, not outside, not in the hallways, not in the [news]paper,” he said.

B.C.’s courts require participants to use preferred pronouns, and Pardy says that could falsely tilt the scales of justice in cases where parents disagree on the issue of a child’s transition into a different gender.

“In the B.C. pronoun situation, you have the courts as a body deciding the outcome of a social debate for the purposes of what happens inside the courtroom. That strikes me as pre-determining the outcome,” he said.

For similar reasons, Pardy is concerned about the sensitivity training judges receive.

“One of the things that’s become popular in recent times is the idea that judges undergo continual education to keep them up to date on certain kinds of social issues,” he says.

“This, for my money, is a dangerous idea because now you’re into the territory of preferring certain social conclusions. And that means, potentially, that the independence of the individual judges is being messed with because the program is trying to influence them into thinking about things in a certain way.”

Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.