The most stunning part of Justice Mosley's ruling in the Convoy case is the following admission of his own bias: X. Conclusion[370] 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 that the decision to invoke the EA was reasonable. 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. I had and continue to have considerable sympathy for those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act. And I acknowledge that in conducting judicial review of that decision, I am revisiting that time with the benefit of hindsight and a more extensive record of the facts and law than that which was before the GIC.[371] 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, particularlythose of the CCLA and CCF. 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, as the private interest litigants were not as capable of marshalling the evidence and argument in support of their applications.It is extraordinary in my experience — unprecedented, in fact — for a judge to admit in his reasons for decision that he entered the proceedings with a bias ("leaning to the view") in favour of one party! And then, to further admit that he would likely have retained this bias were it not for the powerful arguments presented by the public-interest lawyers who didn't have direct standing in the matter. I mean, it is rote dogma in legal circles that a judge must come to a case "with a blank slate," making not even preliminary or tentative conclusions until all of the evidence and argument has been entered. Indeed, that is a required part of every jury instruction: do not start to form an opinion about the case until the case has been closed; only then begin deliberations on how the evidence applies to the law. Had the judge's decision gone the other way, such an admission would probably have been sufficient grounds for appeal for a retrial. That's how serious an admission of bias is. Since the judge ended up siding with the party he was initially biased against, I'm not sure the government can use that as a ground of appeal. In fact it might work against the government's appeal. The judge is signaling that the JCCF and CCF case is so powerful, it actually overcame a judicial bias! I'm surprised that Twitter ("X") hasn't lit up with alarm at this admission of bias. It was actually quite a decisive victory. The judge found that (a) there was no national emergency; and (b) there was no security threat as defined in the CSIS Act. Either one of those findings, alone, decides the matter fully and completely: Trudeau was not justified in invoking the Act, and therefore every action undertaken pursuant to the Act was unlawful. It is possible for the Act to have been properly invoked, yet the measures taken pursuant to it were in breach of Charter rights and not demonstrably justified under section 1. So the judge made rulings on the Charter challenges, too — in case a higher court over-rules him on the first part. The judge found that, even if the EA had been properly invoked — which he denies — some of the Orders issued pursuant to it (e.g. freezing bank accounts) were still unconstitutionally overbroad and thus unlawful. To win on appeal, the government would have to overcome all of these defects (not merely any one of them). I think that is a pretty tall order. Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, AB.
