Justice Richard Wagner is the Chief Justice of the Supreme Court of Canada (SCC). He famously condemned participants and supporters of the 2022 trucker convoy, and has now refused to recuse himself from hearing the upcoming Emergencies Act appeal, as requested by some of the litigants in the case.His refusal is poor judgment on his part, as were his unfortunate remarks insulting supporters of the trucker convoy. A potential juror at a jury trial would be rejected for making similar comments. A judge must always remember the famous aphorism that “Justice must not only be done, but must be seen to be done.” His regrettable refusal to recuse himself now taints any decision that his court will make on the Emergencies Act, and diminishes the very court he purports to lead. But let’s take a short stroll down Memory Lane to remember that dismal lockdown period when Wagner made his remarks, and recall why the Emergency Act was invoked by the Justin Trudeau government.Those were the days when half the country — particularly the western half — had concluded that our federal and provincial governments were guilty of mad overreach on COVID-19 policies. Provincial premiers were warned by Trudeau that they must impose the strictest of COVID-19 policies to qualify for federal funds. Most complied.The policies became increasingly bizarre. Citizens were told that we could not attend any public or church functions, but it was perfectly safe for us to sit one foot away from a stranger for extended periods on an airplane. We were told we couldn’t even take hikes on public trails, but it was perfectly fine to wander around in a Walmart or liquor store. Quebecers were even told that they could not take their dogs outside to relieve themselves during certain hours. And then, as an ultimate assault on personal freedoms, Canadians were told that we must get an experimental vaccine if we wanted to keep our jobs, or fly on an airplane - a vaccine government health officials knew didn’t stop the transmission of the virus. Canadian courts, almost without exception, threw out challenges to those arbitrary, unscientific government measures, no matter how extreme and science-free they were. At the same time as our courts were expanding indigenous tribals claims and identity issues they were failing to protect even our most basic human rights.It was then — at the tail end of that unsettling period — that the federal government decided that all Canadian truckers who entered the United States must be vaccinated. This decision made no sense at all to the truckers. A virus isn’t Canadian or American. The “vaccine” did not stop transmission of the virus in any event. It was in this fraught time that the truckers famously organized a convoy that would go to Ottawa, protest what they viewed as government overreach, and speak to the prime minister. It was also during that time when the chief justice chose to slam the half of the country that disagreed with what the government was forcing them to do..We know how that turned out. The prime minister refused to meet with the protesters, and instead invoked the Emergency Act. Lost jobs, blocked bank accounts, and jailed protestors resulted. The invocation of the Emergency Act was subsequently declared to be illegal, and now the federal government is appealing that decision. The issue of the Emergency Act is intricately tied in with one’s feelings about the lockdown. We know that the chief justice is completely on the side of a government that took the extreme measure of imposing the Emergency Act — essentially to crush a lawful protest.So it should now come as no surprise that the litigants who opposed the implementation of the Emergency Act are objecting to having the very judge who publicly and very harshly criticized them heading the court that decides the ultimate issue. Especially when seven of the nine judges sitting on that court were placed in their current positions by the same person — Justin Trudeau — who made the decision to implement the Emergency Act. I am not being critical of any of those judges. All, including Wagner are highly qualified jurists. But they were all people who shared Trudeau’s progressive worldview, and the public perception is that their chief justice has prejudged the Emergency Act case.So the result is that the litigants who shared the conservative view of the “truckers” probably feel like the apocryphal fellow charged with a criminal offence who is asked by the judge “How do you plead, Mr. Guilty?” Or the Roy Bean judge who declares “I don’t care where the trial takes place as long as the hanging is here.”Wagner is actually a Harper appointment, but it was Trudeau who made him Chief Justice. Wagner’s regrettable comments about the trucker convoy, followed by his refusal to recuse himself are evidence that he was the wrong choice.But this sign of poor judgment by one judge is just the latest sign that our courts have last their way on the most basic issues that vitally affect Canadians. Indigenous claims are the clearest example. The Cowichan case deeply unsettled Canadians. A judge decided that basic home ownership was to be sacrificed essentially to the demands of “reconciliation”. One doesn’t need to have legal training to know that such as decision is wrong.No country on the planet — at any time in history — has done such a thing. The certainty of title is basic to the success of any functioning democracy. The courts have now recklessly thrown that most basic right into doubt.But there are also other radical decisions being made by our courts on indigenous issues. For instance, courts have decided that American citizens can now oppose purely Canadian matters in Canadian courts, simply by declaring that their “indigenous rights” have been effected..In BC this means that an American citizen can have more say on a Canadian matter than a Canadian citizen simply by rising their indigenous heritage. This is shocking and surely comes close to judicial insanity. Every reasonable Canadian knows instinctively that such a result is wrong. But judges keep making these bizarre decisions anyway.Something is very wrong. Where did the courts go so wrong on indigenous issues?The beginning can probably be traced to the Sparrow case, where the SCC decided that “reconciliation” must essentially replace the pursuit of justice on indigenous claims. Where was their authority for undertaking a project that would fundamentally transform the country?There wasn’t one. Section 35’s “existing aboriginal rights” certainly gave no such authority to usurp Parliamentary Supremacy. That section was very clearly intended to preserve aboriginal rights as they existed in 1982. But in Sparrow the SCC simply gave itself permission to disregard that very clear mandate.And it went downhill from there. The Delgamuukw and Tsilhqotin cases basically invented “aboriginal title” throwing out the normal evidentiary rules to do so. Seventh and eighth hand hearsay from indigenous claimants were accepted, under the name “indigenous oral history”, normal limitation periods went by the wayside, and claims made hundreds of years after the fact were allowed.To add insult to injury the fiction that semi-nomadic hunting cultures had the equivalent of property titles was accepted by the court, in spite of the fact that the indigenous claim has always been that Indians did not have a concept of property ownership.Basically all the normal rules were thrown out to ensure that indigenous claims succeeded. The SCC departed from its proper role as a court, and essentially became an advocate for indigenous causes. Senior Ontario lawyer, Peter Best, sets out the alarming history in his important book, There Is No Difference.In addition, reconciliation practice (litigation) directives were written into law at the federal and provincial levels. These directives forbade government lawyers from even advancing their strongest arguments — such as “extinguishment” — if doing so would offend indigenous sensibilities. The directives had the effect of making government lawyers go into court, or into negotiations, with one hand tied behind their backs. The indigenous claimants were basically telling the lawyers what arguments they were allowed to advance, and which ones had to be kept in their briefcases.Some writers, like Joseph Quesnel, in his recent Western Standard article on the subject, and reporter, Terry Glavin, argue that the Cowichan and other radical indigenous cases are simply corrections of historical errors, and emphasize the need for more “modern treaties”. For those who want to take that view, I wish you good luck..But I am not one of those optimistic people. I believe that our courts have taken us down a dark rabbit hole on indigenous claims in their well-intentioned quest to achieve “reconciliation” — unreasonable indigenous demands that cannot be achieved without fatally weakening this country.The claimants will demand more and more, and the courts and accommodating politicians, like Trudeau and Eby, will give it to them. I have no confidence that the Supreme Court will change course on their disastrous “reconciliation” project, even if they distinguish the flawed Cowichan decision. As veteran B.C. columnist, Tom Fletcher, explains, the “reconciliation” version of 200 plus “First Nations” in his province is a hopeless tangle that can only get worse. BC will experience decades of uncertainty and litigation, with only chiefs and lawyers benefiting. The Eby plan to “co-govern” with 200 Indian bands is not only clearly unconstitutional, it cannot possibly work. Not to mention, most of the 200 Indian bands consist of very small numbers of people, ranging from 9 to a few thousand, who will then exert unelected control over the lands of some 5 million residents and property owners of British Columbia.And this hopeless “reconciliation” plan will spread all across Canada as eastern and prairie chiefs demand the same windfall of benefits that the B.C. chiefs rake in through litigation in friendly courts, and “modern treaties” from an overly compliant Victoria and Ottawa.All this has placed this country on a dangerous and destabilizing course. I believe that we must find a way to restore Canada to what it was meant to be — a country of equals — and not a weak apartheid federation of hundreds of semi-autonomous, dependent, race-based states. The Indian issue is only one of the serious issues that must be resolved if Canada is to stay together and prosper. There must be fundamental change.At this late stage only constitutional reform can do that. The only practical possibility of initiating constitutional reform is if either Alberta, Quebec, or both vote “Yes” to sovereignty. That forces the federal and provincial governments to the table to negotiate constitutional changes.The irony for those wishing to keep the country together, is that they might have to vote “Yes” to provincial separation if they want to keep the country together.
