The initials “SCC” used to mean the Supreme Court of Canada. Today, it seems that the initials “SCC” mean the Supreme Circus of Canada.
It was always understood that the court was established to impartially interpret the law according to legal precedent in order to reach solutions on controversial issues. The court apparently has changed its role and, instead, has become an entertainment and information centre for the public, providing opinions on social and political events of the day. In addition to its website, the court is an active user of social media, such as “X” (formerly Twitter), Facebook, LinkedIn, and Instagram through which it tells Canadians the good news. This includes the news that the court now has its own flag. The flag is a parody of Canada’s flag. Instead of a maple leaf in the centre field, there are nine smaller diamonds arranged in the shape of a baseball diamond, representing the nine shining members of the court. The flag is to fly when the court is sitting so that Canadians can be assured that the judges are soberly deliberating issues on their behalf. The court has also acquired a mascot who is called AMICUS the Owl. The owl is known for its wisdom. Further, the Supreme Court has published a Youth Activity Book with pages to colour, and puzzles, part of the court’s outreach to primary and secondary school students. Amicus the Owl is quoted in the activity book, “I am very proud to have been chosen to represent the highest court in the country”. The book goes on to explain “the owl is a good ambassador for the Supreme Court because it symbolizes wisdom and learning”.
Chief Justice Richard Wagner stated in a news conference on June 22, 2018, that he was very proud that the Canadian Supreme Court is the most progressive in the world. Wagner’s pride in the Supreme Court is reflected in the Court’s progressive and controversial views on pornography, euthanasia, abortion, prostitution, homosexuality, marriage, and the use of illicit drugs as well as on other social issues.
This past June, the court continued creating controversy in R. v. Kruk, when Justice Sheilah Martin, in her opinion, joined by five of her colleagues, included the expression “a person with a vagina”. The trial judge used the words “a woman”, which Martin said had been unfortunate, and engendered confusion. Martin, however, does not specify why the word “woman” to identify the complainant was confusing or unfortunate. No one involved in this case is identified as transgender and the complainant is referred to throughout as “she”.
Later, at a media conference, Wagner took aim at politicians, media, and social media commentators, complaining of the criticism of Martin, stating that they were providing “misinformation”. The Quebec National Assembly passed an anonymous motion denouncing Martin for the use of the term “person with a vagina”.
No institution is perfect, nor are the human beings who animate them, and over the years one or two lapses in judgement can be expected. However, with the Supreme Court of Canada, lapses in judgement appear to be the rule and not the exception. Taken as a whole, there is a clear pattern here that indicates that something is very wrong with the culture of the Court.
This trendy court should not be surprising, however, in view of the fact that seven of the nine judges were appointed by Prime Minister Justin Trudeau. Although there are a few fine legal minds on the court, the majority reflect Trudeau’s tendency to be politically correct with little substance. Two of Trudeau’s appointments, Sheilah Martin and Michelle O’Bonsawin, are unabashed feminists. Martin received her PhD in law from the University of Toronto, on the subject of a woman’s right to abortion. One can only imagine the depths of that dissertation. Michelle O’Bonsawin, an aboriginal, received her PhD from the University of Ottawa on Aboriginal rights. Her thesis, however, is now embargoed for undisclosed reasons so we have no way to judge her scholarship or bias. O’Bonsawin’s decisions when she was a trial judge have been notable in that a number of them have been overturned by the Ontario Court of Appeal.
Judge Wagner’s Political Views
In an article published on April 5, 2024, in Le Devoir, Chief Justice Wagner reportedly expressed his views that the Freedom Convoy that took place in Ottawa in February 2022, was the beginning of anarchy, by taking citizens hostage, and by protestors taking the law into their own hands. He claimed the Convoy’s actions, which he believes must be denounced with force, were a blow against democratic institutions. Wagner’s conclusions were reached without benefit of trial or due regard for the presumption of innocence.
If the Le Devoir article, reflecting Wagner’s conclusions, is accurate, this raises questions about a reasonable apprehension of bias and lack of impartiality should the litigation on the legitimacy of Trudeau’s use of the Emergencies Act to stop the Freedom Convoy reach his court. Judges are appointed to the bench to provide legal opinions, not political ones.
Further Doubts about Wagner
Doubts also arise with regard to Wagner’s handling of a complaint against former Justice Russell Brown, “one of the few conservatives on the court”. The initial Press Release by the Supreme Court, dated 7 March 2023, indicated that “Chief Justice Wagner put [Justice Brown] on leave from his duties at the Supreme Court of Canada” implying that Wagner has the power to do so when no such power exists. Later, at a press conference held on June 13, 2023, Wagner attempted to clarify how Justice Brown came to be “on leave,” claiming that “we both agreed, in the circumstances, that the best course to adopt would be for him to stay on the side and leave the Court, pending the resolution of this complaint”. Was this the best solution for Justice Brown, whose reputation is now forever under a cloud?
On April 5th, 2024, the court’s website stated that Chief Justice Wagner was named, in the Quebec Journal, L’Actualité, one of Quebec’s most influential people. The article stated, “since his appointment in 2017, [Wagner] has brought a new dynamic to the country’s highest court”. He certainly has done that.
The Importance of the Integrity of the Court
Public acceptance and support of court decisions depend upon public confidence in the integrity and independence of judges. This depends upon the judiciary upholding a high standard of conduct. The Supreme Court’s lapses in judgement are unfortunate at a number of levels quite apart from the damage they do to the Court’s integrity and public confidence in the justice system. First, they obscure the fact that a number of judges on the Court are hardworking and are deserving of respect on their merits, not just because of the office they hold. Second, lapses in judgement tend to lessen the moral authority of the Court and its legal judgements. Finally, the increasing number of lapses in judgement detract from the more serious scrutiny of actual judgements of the Court in cases that have a profound impact on all Canadians.