Legal Challenge Seeks Chief Justice Recusal in Emergencies Act Case
A group challenging the federal government's invocation of the Emergencies Act has formally requested that Supreme Court Chief Justice Richard Wagner consider recusing himself from upcoming deliberations on the matter, citing concerns about potential bias stemming from his 2022 comments regarding Freedom Convoy participants.
Filing Alleges Apprehension of Bias
The Canadian Frontline Nurses and member Kristen Nagle filed a notice with the Supreme Court of Canada on Wednesday suggesting it could be "inappropriate" for Wagner to participate in appeals involving the government's use of the Emergencies Act during the 2022 Freedom Convoy blockades. The filing states: "Justice Wagner made comments with respect to the participants in the Freedom Convoy 2022 protests that could lead to an apprehension of bias."
The document further argues that "the involvement or connection of The Right Honourable Richard Wagner... with the case may result in it being inappropriate for that judge to take part in the adjudication on the proceedings in the Court."
Government Appeals Lower Court Rulings
This development comes as the federal government filed its application for leave to appeal on Tuesday, asking the Supreme Court to overturn two earlier decisions that ruled the use of exceptional powers under the Emergencies Act was unjustified as a way to stop the Freedom Convoy protests. On the same day, Canadian Frontline Nurses and Nagle filed their own application to the Supreme Court appealing a lower court decision that denied them standing in the Emergencies Act challenge.
Both Canadian Frontline Nurses and Nagle participated in the Freedom Convoy protest in Ottawa, where large trucks and vehicles blockaded streets around Parliament to protest pandemic lockdowns and vaccine mandates. To date, lower courts have heard these issues together, though the Supreme Court has not announced if it will follow the same approach.
Comments from 2022 Interview Cited
The concerns about potential bias stem from an April 2022 interview Wagner gave to Montreal-based newspaper Le Devoir. According to the article, Wagner said some participants in the Freedom Convoy protests were "teleguided" people looking to short-circuit the political system, something that "does not fill me with good feelings."
In French, Canada's top judge stated: "What we saw recently on Wellington Street, here, is the budding start of anarchy where some people decided to take other citizens hostage, to take the law into their own hands, to disregard the system... I find that worrying." The newspaper also reported that Wagner argued the occupation of downtown Ottawa was fueled in part by a "certain ignorance" and a "bad understanding" of Canadian law.
Legal Representation Weighs In
Alexander Boissonneau-Lehner, the lawyer representing Canadian Frontline Nurses and Nagle, explained in an interview that it's reasonable to expect Wagner's decision on their request for leave to appeal will also apply to the case brought forward by the Attorney General. The Supreme Court has not yet responded to questions about the recusal request or how it will handle the multiple related appeals.
The legal maneuvering represents a significant development in the ongoing judicial examination of the government's controversial use of emergency powers during the 2022 protests. The outcome could have substantial implications for how future governments approach similar situations and for the perceived impartiality of Canada's highest court in politically charged cases.
