On the social media site formerly known as Twitter, David Knight Legg explains why the Chief Justice should recuse himself from deliberation on an upcoming Supreme Court case involving the Freedom Convoy 2022:
Canada’s Chief Justice Richard Wagner has installed a lifelike bronze bust of himself in our highest court.
It should be called “Narcissus Canadiannus”
– There is no precedent for something this vulgar in the history of the Court. It should be taken down. Richard fancies himself.
– Richard also fancies his own opinion on things. He violated legal due process and the Court’s reputation by publicly accusing the Convoy — who protested backwards federal Covid policies that were soon dropped — of “anarchy” and “hostage taking”.
Now that the Convoy’s freedom of speech, assembly and due process rights have been asserted by lower courts the Supreme Court has to consider the appeal of the federal govt and weigh the rights of citizens against the decision of the federal government to impose the Emergencies Act to suspend those rights.
Wagner’s lack of judicial discretion in the first instance makes his recusal from such an important rights-defining case important because it signals not just fairness in the content of the decision but in the way the decision gets reached by the highest Court.
He has already shown his bias. Any decision against the convoy poisons the integrity of the Court if he remains present.
But Richard — the man with the bust of himself in our Court — doesn’t imagine himself under the law he imposes on others. He hasn’t completed any graduate work in law or published any academic work in law, philosophy or jurisprudence so it’s hard to know how he justifies himself in these matters.
Ironically, he has a reputation for warning others — including those far more qualified in formal jurisprudence than he is — not to critique Canadian judges like himself or their (increasingly bizarre and politicized) decisions.
But, from the Magna Carta onwards, Richard should know that in law as in politics dissent is democracy.
The dissent of the Convoy and the growing critique of Richards own bizarre behaviour and inability to articulate a judicial philosophy is exactly what’s needed to save Canada — and the Court’s reputation as a place where justice — not the ego of the Justices — is at stake.
Richard should recuse himself. And remove that vulgar bust from the Supreme Court.
#SCC #RuleOfLaw
Melanie in Saskatchewan also has concerns, expressed as an open letter to the Chief Justice:
To Chief Justice Richard Wagner,
Your refusal to recuse yourself from the Emergencies Act appeal, as reported in the National Post, is not a demonstration of judicial confidence. It is a failure of judgment at a moment that demanded restraint.
Image from Melanie in Saskatchewan
You have justified your decision on the basis that your prior public comments did not address the specific legal questions before the Court. That argument may satisfy a narrow, technical reading of judicial conduct. It does not satisfy the standard Canadians are entitled to expect from the Chief Justice of the Supreme Court.
The governing principle is not whether you commented on the precise statutory interpretation of the Emergencies Act. It is whether a reasonable and informed person would conclude that your previously expressed views could influence your assessment of the case.
You publicly characterized the convoy as the “budding start of anarchy”, described residents as being “taken hostage”, and spoke in terms that conveyed clear condemnation of the events and participants. Those were not neutral observations. They were judgments about the nature, legitimacy, and perceived threat posed by the very situation now under review.
This appeal is not a retrial. It does not exist to rehear evidence or relitigate the convoy as though the past can be reset. Appellate review in Canada is focused on whether the law was correctly interpreted and properly applied to established facts, with significant deference given to the findings already made by the lower courts.
That distinction matters.
[…]
As Chief Justice, you are not merely a participant in this case. You are the steward of the reputation of the Supreme Court of Canada itself. That reputation rests not on assertions of impartiality, but on decisions that demonstrate it beyond reasonable doubt. In choosing not to recuse yourself under these circumstances, you have not strengthened that reputation. You have placed it at risk, at a time when public confidence in national institutions is already fragile. The damage may not be immediate, but it is real, and it is yours to own.
