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Politicization of Supreme Court of Canada Started Long Before ‘Woman’ Dustup

“What the Supreme Court demonstrates again and again is a set of scales tipped towards one side of this issue,” she writes. “If you believe that men are male and women are female, you can’t realistically expect the top court to hear you out as it would a gender-spectrum believer. That’s a problem, especially now that philosophical debates increasingly play out in the courts.”

A court taking on the “spirit of the times” is, some would say, natural. Why the fuss?

The problem is that the SCC has become part of the political power game in Ottawa and has ceased to function properly as a court.

As my friend, law professor Iain T. Benson says, “How can citizens expect to be treated in a judicial manner when the court has taken sides in political matters about which reasonable people disagree?”

There are an increasing number of examples of this by the top court. Consider the rather odd post of a photo of its five female justices to mark March 10 as International Day of Women Judges with the caption: “Achieving gender parity among judges at all levels in Canada is a step in the right direction towards having greater diversity on the bench.”

The SCC does not appoint its own judges and yet it virtue signalled as if it did. For what purpose? It is supposed to be a court of law.

However, one of the most graphic examples is what happened in relation to the Freedom Convoy trucker’s protest in early 2022. (I published a book on this topic last November, titled 210 Celsius: 16 Ways The Truckers Ignited Canada For The Long Haul.
 
If evidence was needed of the SCC taking on a political position, one only has to consider Chief Justice Wagner’s statement against the Freedom Convoy as it provides a superb example of the failure of judicial probity and prudence. Wagner stated that the convoy “should be denounced with force by all figures of power in the country.”

Let that sink in for a minute.

Never have our Supreme Court chief justices ever gotten in front of a political issue the way Wagner did regarding the convoy protest. To put into perspective the politicization of the SCC today, we only need to see how such an act was regarded in the past by the senior members of the court bench.

I’m speaking of the fierce battle between Chief Justice Bora Laskin and B.C. Justice Thomas Berger in the early 1980s. Berger got into hot water for publicly criticizing the way Prime Minister Pierre Trudeau handled the indigenous rights file during the charter negotiations, and was chided by Laskin.

The judges of Canada were in an uproar that Berger would get involved in politics. That also was the high-water mark of the concept that judges had no business getting into the political weeds because they just might have to pass judgment on the political events that end up in court. As they often do.

A complaint against Berger was filed with the Canadian Justice Council (CJC) by an irate judge. The CJC held a hearing and ultimately concluded that Berger had stepped over the line and would normally be removed from office, but “such a severe sanction should not be invoked in this instance.” It would be unfair, they said, to remove a judge “on the basis of standards of judicial restraint which had not previously been enunciated.”
 
Laskin was still not happy. At a Canadian Bar Association meeting in 1982, he came out strongly against those who claimed Berger’s freedom of speech was stymied, saying it was “plain nonsense.”

“A judge has no freedom of speech to address political issues which have nothing to do with his judicial duties,” he said.

“His abstention from political involvement is one of the guarantees of his impartiality, his integrity, his independence. Does it matter that his political intervention supports what many, including the press, think is a desirable stance? … Surely there must be one standard, and that is absolute abstention.”

Fast forward to 2022 and a group of 13 lawyers sent a complaint to the Canadian Judicial Council against Chief Justice Wagner for his comments against the Freedom Convoy. The CJC threw out the lawyers’ complaint against Wagner with the following statement: “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.”
 

Times have changed, indeed.

Law is always going to be involved in issues with a political dimension, but that is different than the court itself being political.

In 1924, Lord Chief Justice of England, Gordon Hewart, articulated the famous legal maxim: “[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The SCC needs to return to the approach so clearly understood by former Chief Justice Bora Laskin and decouple itself from the stance taken by the current chief justice.

The more appropriate judicial behaviour toward the Freedom Convoy was exhibited by Federal Court Justice Richard Mosley when he recently ruled in no uncertain terms that the prime minister’s use of the Emergencies Act was unconstitutional.
 

Imagine how the Supreme Court of Canada is going to handle the government’s appeal of Justice Mosley’s decision, having so prejudged the issue outside of the courtroom? My guess is that if the Federal Court of Appeal overturns the Mosley decision, the Supreme Court will not even hear an appeal. They dare not for fear of being called every pejorative in the post-modern lexicon.

If the SCC does accept the appeal of Mosley’s decision, how could Chief Justice Wagner possibly sit on the panel? His very public pre-judgment of the issue means that he must recuse himself. That is not a good look for Canada’s highest court.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
 
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