How can Canadians trust biased judges on the appeal courts?

Finance Minister Chrystia Freeland says the government will appeal the decision delivered in the Federal Court by Justice Richard Mosley on January 23. He ruled that Ottawa’s use of the Emergencies Act early in 2022 to end the Truckers’ Freedom Convoy’s protest on Parliament Hill was not justified.

Addressing a challenge to the Act’s invocation to end the protest in early 2022, by the Canadian Civil Liberties Association and others, Justice Mosley said, "I conclude that there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires (outside the government’s powers).”

Ms Freeland said this after the decision’s release: “We respect very much Canada's independent judiciary. However, we do not agree with this decision … I was convinced at the time it was the right thing to do, it was the necessary thing to do. I remain and we remain convinced of that.”

The next stop would normally be at the Federal Court of Appeal. But many reasonable and informed Canadians will see a problem, at least with its Chief Justice, Paul Crampton. When accepting the government’s imposition of Covid imprisonment, he wrote, “It bears underscoring here that what is relevant is the objective of the Impugned Measures, not their actual effectiveness… Accordingly, all that is required to demonstrate that the Impugned Measures are not arbitrary is the existence of some link between them and the objective(s) they were intended to achieve.”

Jay Cameron, litigation director of the Calgary-based Justice Centre for Constitutional Freedoms, said Justice Crampton’s deference to government edicts was “an embarrassment to the body of law regarding confinement and detention.” Canadians who fled communism will at once recognize Justice Crampton’s mindset.

The ultimate recourse for appeal is the Supreme Court. The problem there is that Chief Justice Richard Wagner has flaunted his biases. In an interview with the French language newspaper Le Devoir, published on April 9, 2022, Justice Wagner said: “What we have seen recently on Wellington Street 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 workings of government.” There was no vestige of hostage-taking. But Justice Wagner rampaged on anyway with his vilification of the protest. He said those peaceful protests “must be denounced with force, and by all the powers of the state.” There are echoes of tyrannies around the world, like China’s suppression of peaceful protests in Hong Kong.

Several scholarly critics denounced the Chief Justice for what he said, and filed a complaint with the Canadian Judicial Council (CJC). Law professor Bruce Pardy, writing in Epoch Times, quoted from the Toronto Star that at his first press conference in 2018 Justice Wagner said his court was “the most progressive in the world.” Wanjiru Njoya, a legal scholar at the University of Exeter and formerly at Queen’s University in Kingston, says that in the modern legal firmament, the range of what is considered reasonable has been narrowed to progressive ideals alone. In the courts and within the legal academy, as she puts it, the dominant perspective “delineates the boundaries of what progressives consider to be reasonable, measured, and balanced interpretations of the demands of justice.” Perspectives falling outside these boundaries, she says, are perversely defined as unreasonable and therefore regarded as not worthy of respect.

As its head, how could the Chief Justice’s fail to know what the text of the Canadian Judicial Council (CJC) in its Ethical Principles for Judges?

Like partisan political activity, out of court statements by a judge concerning issues of public controversy may undermine impartiality. They are also likely to lead to public confusion about the nature of the relationship between the judiciary on the one hand and the executive and legislative branches of government on the other. Partisan actions and political statements by definition involve a judge in publicly choosing one side of a debate over another.

A complaint to the CJC elicited this response from Jacqueline Corado, acting executive director: “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. 

Public confidence is at higher risk when public and dogmatic motivated attacks against the judiciary are launched without merit or for improper purposes.” One may wonder whether the Chief Justice wrote his own exculpation.

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In a similar case in 1982, the CJC conducted an inquiry into comments made by then Justice Thomas Berger of the BC Supreme Court. With comments appearing in an article he wrote for the Ottawa Citizen and elsewhere, the judge was concerned about the entrenchment of native rights and language rights in the constitution. In his own defence, Justice Berger wrote, “The issues which I discussed transcended partisan politics.” But this is what the CJC said about his conduct:

1. The Judicial Council is of the opinion that it was an indiscretion on the part of Mr. Justice Berger to express his views as to matters of a political nature, when such matters were in controversy.
2. While the Judicial Council is of the opinion that Mr. Justice Berger’s actions were indiscreet, they constitute no basis for a recommendation that he be removed from office.
   The Judicial Council is of the opinion that members of the Judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the courts.

Following publication of these recommendations, Justice Berger resigned from the bench. For the case at hand, however, one may wonder whether Ms Freeland is right to be confident about an appeal. Having previously been subservient to official doctrine, will appellate judges endorse conduct recognized by Justice Mosley as government overreach? How can reasonable and informed outsiders trust our justice system when even the Chief Justice publicly prejudges controversial issues?

Colin Alexander was publisher of the Yellowknife News of the North. His most recent book is Justice on Trial: Jordan Peterson’s case and others show we need to fix the broken system.

Links:
• Mosley’s decision
• CJC Wagner complaint
• CJC Berger Decision
• Justice on Trial: Jordan Peterson's case and others show we need to fix the broken system

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