
Michael Higgins has penned an article on the National Post: The Arrogance of Chief Justice Wagner.
https://nationalpost.com/opinion/the-arrogance-of-chief-justice-richard-wagner
At issue is whether Justice Wagner should have recused himself in light of comments made in the Le Devoir newspaper that described the Freedom Convoy as the "small beginning of anarchy".
The question is whether the Chief Justice is biased as a consequence.
Here's the rub, if he had said nothing, Higgins would have not had a cause to fret, but the Justice would presumably would have still espoused such views - only privately.
Now that the views are out in the open, Mr. Higgins has plumbed the depths of outrage.
Where Higgins gets it wrong is that having a view is different than following the law. For example, many Conservatives and Liberals on the US Supreme Court have a history of a particular bend in their positions.
Is there such a thing as a Justice without views ? Certainly, it is a correct proposition that judges should be careful not to speak of pending cases before them, or cases they may hear in the future.
At the time of making the comments, there was no case before the courts. It would be harsh to ask a Justice to recuse themselves for any remark uttered in the past.
Furthermore, even if the Convoy is the "small beginning of anarchy" doesn't necessarily mean the Emergencies Act invocation is justified. The question is a legal one, did the government have sufficient powers by the powers already at its disposal that such an invocation suspending civil liberties was unwarranted.
Higgins reaches a conclusion that by describing the Convoy as the small beginning of anarchy, the Emergencies Act being justified is a foregone conclusion. Not necessarily.
In Vancouver after the Stanley Cup loss to the Boston Bruins the resultant riots were also anarchy, for those who will recall. Does that mean the Emergencies Act should have been invoked.
Higgins should allow the Court a chance to hear the case and consider the legal question before it. Ironically, he himself appears to have rushed to judgement, precisely what he accuses Chief Justice Wagner of doing.