EDITORIAL: Perceived bias at the Supreme Court

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Now that the Supreme Court of Canada has agreed to hear the federal government’s appeal of two Federal Court rulings that its use of the Emergencies Act in 2022 was unconstitutional, the refusal by Supreme Court Chief Justice Richard Wagner to recuse himself becomes all the more concerning.

How can the court be seen to be objective when the chief justice has already denounced the organizers of the trucker convoy as would-be anarchists?

After the end of the month-long protests that began in January 2022, Wagner said in a series of public statements that they were “a small beginning of anarchy,” that people were taken “hostage,” that some actions were “deplorable” and “should never happen again” and that protest leaders used “disinformation” to mislead people, causing them to lose faith in their institutions.

Opinions on protest actions well-known

As reported by the National Post, having been asked by one of the intervenor groups in the case to recuse himself from considering whether the Supreme Court should hear the government’s appeal because of those comments and the perception of bias, Wagner refused.

Through the court registrar, Wagner said he hadn’t directly or indirectly commented on the government’s use of the EA.

But what he has commented on, at length, is his view of what the protesters did, which was the basis of the government’s argument about why it invoked the EA.

No doubt many Canadians agree with Wagner’s view of the protests, but the issue is whether the government’s invocation of the never-before-used EA and its extraordinary powers was justified.

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Outcome of case extremely important

Two Federal Courts have ruled the government’s invocation of the EA — only to be used in a true national emergency when all other efforts have failed — was unjustified because every reason the government gave for using it could have been addressed by using existing legislation, competently enforced.

The outcome of this case is extremely important to the rights of Canadians because it deals with what conditions must exist for a government to invoke the EA and, as important, what are the limits, if any, on using that power.

The chief justice’s comments on the protests and the motives of the protesters are a classic example of why judges should not comment on cases and issues that are likely to come before them.