One would think that at a time when public faith in the nation’s institutions is in decline, those at the helm of those important organizations would be taking long looks in the mirror and doing everything they can to restore trust. But if they can’t do that, one would expect they would at least stop doing things that further diminish the Great Unwashed’s confidence in the core establishments upon which our democracy depends? Apparently, even that is too much to ask. The chief justice had made some rather harsh public comments last spring about the protest—judges are expected to avoid making such remarks in public—that prompted a number of lawyers to file a complaint with the Canadian Judicial Council. The council dismissed the complaint with some dispatch, but the scent of the issue will most certainly fill the air should the matter of the government’s crackdown on the convoy
protesters come before Wagner and his colleagues in the future. A federal court ruled in January that the
Justin Trudeau government’s use of the Emergencies Act was not justified, a decision which the government has signalled it will appeal. And then, it created controversy by adding: “Achieving gender parity among judges at all levels in
Canada is a step in the right direction towards having greater diversity on the bench.” Another user said: “You are becoming politicized and ideologically corrupt.” If you are at all familiar with X/Twitter, I don’t need to spell out for you where it all went from there. You may agree with the post on behalf of the SCC that achieving gender parity on the bench is a good thing. Or you may disagree and hope that the only thing that qualifies someone to sit on the
Supreme Court is their legal knowledge and ability to interpret the law and settle disputes over it in a ruthlessly objective and non-partisan
fashion. You might even agree with both. Or neither. But the statement is absolutely a political one that caused controversy—something the nation’s judges should be avoiding at all costs if they wish to maintain public confidence in their impartiality. As the Canadian Judicial Council points out in its Ethical Principles for Judges document: “Given the independence accorded judges, they share a collective responsibility to promote high standards of conduct. “The rule of law and the independence of the judiciary depend primarily upon public confidence. Lapses and questionable conduct by judges tend to erode that confidence. … Public acceptance of and support for court decisions depends upon public confidence in the integrity and independence of the bench. This, in turn, depends upon the judiciary upholding high standards of conduct. “[O]nly by maintaining high standards of conduct will the judiciary (1) continue to warrant the public confidence on which deference to judicial rulings depends, and (2) be able to exercise its own independence in its judgements and rulings. “In short, judges should demonstrate and promote high standards of judicial conduct as one element of assuring the independence of the judiciary.” On its own, it’s hard to point to this incident and declare that some great sin has taken place and that the fall of Western civilization is imminent. But it’s just as true that more people are likely saying that today than were of that belief prior to the creation of the posts in question. To wit, while progressives will think these are perfectly wonderful and uncontentious statements, those more inclined to conservative views will think these statements point to a state of mind at the SCC that is unlikely to work in their favour on matters that come before the court. Which also means that, sadly, trust in that institution today is a little less than it was a week ago. For no good reason at all.