Group Questions Whether Supreme Court Chief Justice Should Recuse Himself From Emergencies Act Case

A group appealing the Emergencies Act case at the Supreme Court is asking the court whether Chief Justice Richard Wagner should recuse himself from the process, citing potential bias.

The federal government filed an application with the Supreme Court on March 17 to appeal a January decision by the Federal Court of Appeal. That court had rejected Ottawa’s appeal of a 2024 lower court decision, finding that it “correctly” determined that the Emergencies Act was unreasonably invoked.

Canadian Frontline Nurses (CFN) filed an appeal application with the Supreme Court, saying it could be “inappropriate” for the chief justice to take part in the court’s discussions on whether to hear the case due to his past comments about protesters. Some members of CFN participated in the Freedom Convoy protest in Ottawa in 2022.

In the filing, CFN’s lawyer Alexander Boissonneau-Lehner cited Wagner’s comments published in an April 2022 article in the Quebec newspaper Le Devoir. The chief justice was quoted as saying the Freedom Convoy protest was the “beginning of anarchy where certain people decided to take other citizens hostage, to take the law into their own hands.”

The judge also argued that the demonstration was fuelled in part by a “certain ignorance” and a “bad understanding” of Canadian law, the newspaper reported. In response to a question at a news conference in June 2022, Wagner also called the impacts of the protests in Ottawa “deplorable,” according to The Globe and Mail.

“Justice Wagner made comments with respect to the participants in the Freedom Convoy 2022 protests that could lead to an apprehension of bias,” reads the filing, adding that his involvement in the case “may result in it being inappropriate for that judge to take part in the adjudication on the proceedings in the Court.”

In response to Wagner’s past comments, 13 lawyers sent a complaint to the Canadian Judicial Council in 2022, but the council threw out the complaint, saying it was “manifestly without substance, and does not concern judicial conduct.”

The Emergencies Act gave law enforcement sweeping powers to arrest demonstrators, ordered banks to freeze the accounts of some of the protesters, and compelled towing companies to remove protesters’ vehicles from downtown Ottawa. The act, which was revoked 10 days later on Feb. 23, also made it illegal to attend any event deemed an unlawful assembly, such as the protest in downtown Ottawa.

A public inquiry headed by Court of Appeal Justice Paul Rouleau, held to determine whether the government was justified in using the act, concluded in 2023 that the cabinet met the “very high” threshold of invoking it.

Meanwhile, the Federal Court of Canada ruled in January 2024 that the use of emergency powers to shut down the Convoy protest in Ottawa was unreasonable and “not justified in relation to the relevant factual and legal constraints” required by the Emergencies Act.

Ottawa challenged the ruling, but the Federal Court of Appeal on Jan. 16 upheld the lower court’s ruling that the government’s invocation of the Emergencies Act in 2022 was unreasonable.

Ottawa filed an application on March 17 to have an appeal heard at the Supreme Court, arguing that the lower courts had incorrectly reviewed the use of the Emergencies Act, which the government said was used because it believed the Freedom Convoy protest of 2022 presented a threat to Canada’s national security.

The Supreme Court has not yet said whether it will hear the Emergencies Act case.

Olivia Gomm contributed to this report.