The most inspiring aspect of Federal Court judge Richard Mosley’s ruling against the government’s controversial invocation of the Emergencies Act was his admission that advocates for liberty had changed his mind.
Now, we’ll have to wait and see whether the chief justice of Canada’s Supreme Court can be similarly swayed, because he’s already made his views on the Freedom Convoy quite clear and is very likely to wind up presiding over an appeal.
“At the outset of these proceedings, while I had not reached a decision on any of the four applications, I was leaning to the view the decision to invoke the EA [Emergencies Act] was reasonable,” Justice Mosley wrote in his Jan. 23 ruling declaring the federal government’s use of a law designed to be used only in the case of national emergencies to be “unreasonable” and in violation of a section of the Charter of Rights and Freedoms.
“I considered the events that occurred in Ottawa and other locations in January and February 2022 went beyond legitimate protest and reflected an unacceptable breakdown of public order,” he wrote.
“My preliminary view of the reasonableness of the decision may have prevailed following the hearing due to excellent advocacy on the part of counsel for the Attorney General of Canada had I not taken the time to carefully deliberate about the evidence and submissions, particularly those of the CCLA [Canadian Civil Liberties Association] and CCF [Canadian Constitution Foundation].
“Their participation in these proceedings has demonstrated again the value of public interest litigants. Especially in presenting informed legal argument. This case may not have turned out the way it has without their involvement.”
Amen to that. Both the CCLA and CCF have been relentless guardians of Canadians rights and freedoms. They have fearlessly played a role that has become increasingly lonely due to so many in mainstream media having shirked their responsibilities as guardians of individual liberties.
Face it. Canada has largely abandoned the era of classical liberalism in which citizens embraced statements such as “I disapprove of what you say, but I will defend to the death your right to say it.” Those who held to that belief have been almost entirely replaced by a generation of illiberal de-platformers and cancel-cultists determined to punish those with whom they disagree. Their philosophy is more likely to express itself with, “I disapprove of what you say and will make sure you rot in social and professional exile for having said it.”
So, God bless the CCLA, the CCF, and independent/alternative media with the guts to stand up for freedom of expression. And hats off to Justice Mosley for having the character and wisdom to listen to arguments with an open mind.
But as much as each of those has acted in ways likely to restore Canadians’ faith in justice, there’s a problem looming on the horizon.
Richard Wagner, chief justice of the Supreme Court of Canada—which is where the matter of the Emergencies Act will almost certainly be finally decided—has already expressed some very strong views on the Freedom Convoy.
“What we saw recently on Wellington Street here was the beginnings of anarchy where certain people decided to take other citizens hostage, to take the law into their hands, to not respect the mechanism. … I find that worrying,” he told Le Devoir, which went on to report (in French of course) that, “The attacks of force against the State, justice and democratic institutions such as that carried out by protesters at the doors of the Prime Minister’s office and the Privy Council, Parliament, the Supreme Court of Canada and the Press Gallery parliamentary between January 28 and February 21 must be forcefully denounced, and this, by all the figures of power in the country, believes Mr. Wagner.”
This resulted in a complaint being filed with the Canadian Judicial Council by 13 lawyers who stated:
“We respectfully submit that the Chief Justice’s views expressed in the Le Devoir article fit within the legal definition of a reasonable apprehension of bias and an appearance of partiality. We submit that the Chief Justice’s remarks will undermine Canadians’ confidence in the independence of the Supreme Court of Canada in particular, and in the judiciary, generally.”
The complaint was dismissed almost as swiftly as it was filed.
The lawyers can fuss over the who’s and the what’s of the particulars, but when it comes to the court of public opinion and confidence in our institutions, the Supreme Court may be about to bat on a sticky wicket.
As Justice Mosley illustrated, it’s entirely possible for a judge to have his preliminary view—one he had not publicly disclosed prior to hearing the case—changed.
Heading into an appeal, however, Chief Justice Wagner’s view of the events is already on the record. The fact the judicial council dismissed the complaint against his comments means it’s unlikely the issue will be raised in court.
But the public will know. And that means that should the court overrule Justice Mosley’s decision, the worst fears of those who signed the letter of complaint could be realized.
