Canada’s Chief Justice disavowed objectivity and impartiality when he publicly announced a COVID-19 vaccine mandate in the Supreme Court

The differences in how various countries’ high courts have approached unprecedented civil liberties infringements under the guise of a public health emergency highlights that Canada isn’t as progressive as we think.

Canada’s Chief Justice disavowed objectivity and impartiality when he publicly announced a COVID-19 vaccine mandate in the Supreme Court
THE CANADIAN PRESS/Sean Kilpatrick
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It started out as two weeks to flatten the curve in provinces and territories all across Canada.

Early 2020 saw various jurisdictions around the world declare states of emergency and sweeping societal lockdowns in an attempt to suppress what was being labelled a novel respiratory pathogen.

Populations within developed democratic nations thought they had a judicial system ripe with checks and balances to protect their civil liberties in case of such an event.

Yet those liberties were willingly forfeited by the masses for the sake of their health, and the health of the “greater good.”

“Each of us has an inherent interest in deciding what happens to our body,” writes lawyer Leslie-Ann Wood in her e-book titled Vaccination Status – A Canadian Story. “This is recognized by the Constitutions of liberal democracies around the world, and in the Canadian context, notably as part of section seven of the Charter.”

Section seven guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Naturally, when fast-tracked COVID-19 vaccines and their subsequent mandates were a source of contentious legal discussion, Canadians relied on the historically impartial upholders of truth and justice for guidance.

At the same time, Canada’s highest court, the Supreme Court of Canada (SCC), announced a COVID-19 vaccine mandate for all in-court staff. In September 2021 it proudly proclaimed the personal vaccination of all nine judges as “fully vaccinated” and intended for staffers to follow suit.

“It was the first known court to announce that its judges are all fully vaccinated against COVID-19,” an article in Law360 reads.

Chief Justice of Canada, Richard Wagner, sits at the top of the proverbial legal food chain at the highest court. His role is to preside over the judiciary environment in Canada, a position in which he has a clear impact on, and influence over, the courts below him.

Courts — and judges — are supposed to be impartial after all.

Conversely, comments by Justice Wagner are suspected to have acted as a catalyst for the imposition of widespread vaccine mandates.

If Canada’s highest court is doing it, then the mandates must be legal and just — right?

Well, not necessarily.

In the same Law360 article, Chief Justice Marc Noël (the leader of the Federal Court of Appeal, one step below the SCC), said that he does not consider the disclosure of views or policies on the [vaccine] issue to be “ethically appropriate.”

He is further quoted as saying that matters relating to mandates are expected to come through his court and so judges “must ensure that their conduct at all times maintains and enhances confidence in their impartiality.”

Given that it is the primary responsibility of the court system to maintain balance, objectivity and neutrality, this was a wise choice by Justice Noël.

And at least one former lawyer with the SCC has agreed with this stance and decried the fundamentally biased position of Justice Wagner.

Counsel Woods details how she felt a duty not to comply with vaccination mandates, refusing to disclose her status either way, describing the requirement as “ethically, legally and logically problematic,” in her e-book.

Woods even went so far as to lodge a complaint against Wagner.

But first, she wrote the president of the Quebec Bar in January of 2022 expressing concern that the “measures taken by the government in response to the pandemic interfered with fundamental Charter rights.” One month later, the Bar issued a statement reminding government of the time limited necessity of extraordinary emergency measures.

On February 4, 2022 Woods filed a complaint with the Canadian Judicial Council regarding Wagner’s public statements on COVID-19 vaccine mandates within his court.

“I expressed my concern that the Chief Justice’s announcement may have impacted the judiciary’s independence and impartiality, or eroded the public’s confidence in the same. Since the Supreme Court is Canada’s highest court, making this internal vaccine policy public may have given lower courts the impression that the highest court viewed such mandates as being appropriate and lawful, and influenced their decision-making. At a minimum, it raises such concerns in terms of public perception.”

Woods’ complaint was dismissed by the Council for reasoning that appears to be a distortion of the basis of her grievance, conflating wording around a public policy and making a policy public. “Distinct notions,” as Woods puts it, “that are evident.”

“The fact that the Chief Justice adopted this policy implies that he views it as being lawful – this is a matter of common sense (unless one posits that the Chief Justice intentionally and openly acts unlawfully, a viewpoint I doubt the Judicial Council would advance.”

It’s an instance of stonewalling and gaslighting — two cornerstones of the success of public health related measures that Woods dedicates an entire chapter to.

To this day, Justice Wagner has not rescinded his out of court commentary or issued clarification, despite recent proclamations by United States Supreme Court Justice Neil Gorsuch, who harshly criticized public willingness to surrender freedoms for the illusion of safety.

Will Chief Justice Wagner recuse himself, clarify his biased reverence for vaccine mandates, or continue on unabated as his peers in other jurisdictions rightfully condemn pandemic woes?

Coronavirus Canada lockdown COVID Vaccines News Analysis Supreme Court of Canada
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