342 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
mous verdict of twelve persons” and that “there is no good reason for denying
an accused person a full jury where no evidence has yet been led”.2 A
reduction in the mandatory number of 12 jurors to start a criminal jury trial,
who must render a unanimous verdict, is a frontal assault on the right to
jury unanimity—a well-established right since 1367.3
If a constitutionally suspect law, such as a law that is inconsistent with
the requirement that a criminal jury of 12 unanimously render a verdict,
were ever passed while Chief Justice Wagner sits at the Supreme Court of
Canada, the appearance of a conflict of interest would be palpable. Many
were troubled by his co-chairing the COVID-19 Court Response Committee
and his comments on possible legislative reform while serving in that role.
In response, Wagner C.J. declared that he saw no problems. The issue with
a judge commenting on possible legislation that he could later be called
upon to constitutionally interpret is the appearance of a conflict of interest.
It is “of fundamental importance, that justice should not only be done, but
should manifestly and undoubtedly be seen to be done”.4
Something else further blurs the lines of governmental accountability: if
anyone wanted to complain to the Canadian Judicial Council (“CJC”), the
body that investigates and disciplines judges, about a Chief Justice of
Canada, guess who is in charge. The Chief Justice of Canada is the chairperson
ex officio of the CJC. Similarly, in his Report of the Third Independent
Review Authority to the Minister of National Defence, the Honourable Morris
Fish (former Supreme Court of Canada justice) expressed concern about
the impossibility of having the Chief of Defence Staff (“CDS”) tried by a general
court martial.5 A general court martial must have at least one panel
member who is “an officer of or above the rank of the accused person”, but
nobody is of or above the rank of the CDS. Is such a situation similar for the
Chief Justice, the person responsible for leading the very body that would
be required to pass judgment on their own conduct if a complaint were ever
made? Who judges the chief judge?
Montesquieu, author of Spirit of the Laws, famously philosophized about
the “separation of powers” (or the “trias politica”). For liberty to be best preserved
for the people, the political and government authorities must be separated
into the executive, the legislative and the judiciary. Rather than each
working hand in glove with the other branches of government, each serves
to act as a check or balance on the others. Unchecked government power
recalls the sage words of Lord Acton: “Power corrupts, and absolute power
corrupts absolutely.”
Montesquieu’s philosophical ideals influenced the Declaration on the
Rights of Man arising out of the French Revolution, and the U.S. Constitu-