This paper reviews the unusual case of Wewaykum Indian Band v. Canada where a motion to vacate the judgment was brought after the Court had rendered a unanimous decision on the merits of the case. It was alleged that a reasonable apprehension of bias existed because of involvement that Justice Binnie (who authored the decision) had with this file while Associate Deputy Minister of Justice of Canada some 15 years earlier. In the first part of the paper, the author reviews the Supreme Court’s decision in Wewaykum, focusing on several key issues in the disqualification motion. In the second part of the paper, the author contends that Wewaykum is also an important constitutional case. The author contends that judicial impartiality is a core value in the Canadian constitutional system and that challenges to the impartiality of the Supreme Court constitute attacks on the Constitution itself. In response to the age old question of Sed quis custodiet ipsos Custodes? — who guards the guardians — this paper argues that Parliament, the bar and the Court itself each have a duty to protect the integrity of the Court. The paper proposes means for each of these parties to protect the Court and, ultimately, the Constitution as well.
Dodek, Adam M..
"Constitutional Legitimacy and Responsibility: Confronting Allegations of Bias After Wewaykum Indian Band v. Canada."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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