Group challenging use of Emergencies Act asks chief justice to consider recusing himself from case

OTTAWA — A group challenging the Liberal government’s invocation of the Emergencies Act in court says Chief Justice Richard Wagner should consider recusing himself from upcoming Supreme Court deliberations on the matter because of 2022 comments on the Freedom Convoy.

Wednesday, the Canadian Frontline Nurses and member Kristen Nagle filed a notice to the Supreme Court of Canada (SCC) suggesting that it could be “inappropriate” for Wagner to participate in appeals involving the government’s use of the Act during 2022 Freedom Convoy blockades.

“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.

“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.”

On Tuesday, the federal government filed its application for leave to appeal asking the highest court in the land to overturn two earlier decisions that ruled the use of the exceptional powers in the act was unjustified as a way to stop the protests.

On the same day, Canadian Frontline Nurses and Nagle filed their own application to the SCC appealing a lower court decision to deny them standing in the aforementioned Emergencies Act challenge.

Canadian Frontline Nurses and Nagle both participated in the Freedom Convoy protest in Ottawa, during which many large trucks and vehicles loudly blockaded the streets around Parliament to protest the government’s pandemic lockdowns and vaccine mandates.

To date, lower courts have heard these issues together, though the Supreme Court has not announced if it will do the same.

The SCC did not immediately respond to questions from National Post.

In an interview, Alexander Boissonneau-Lehner — the lawyer representing Canadian Frontline Nurses and Nagle — said its reasonable to expect that Wagner’s decision in their request for leave to appeal will also apply in the case brought forward by the Attorney General.

Some of the comments raised by the Canadian Frontline Nurses date back to an April 2022 interview Wagner gave to Montreal-based newspaper Le Devoir .

According to the article, Wagner said that 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”.

“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,” he said in French.

Canada’s top judge also argued that the occupation of downtown Ottawa was fueled in part by a “certain ignorance” and a “bad understanding” of Canadian law, the newspaper reported.

Boissonneau-Lehner said his group is not explicitly calling for Wagner’s recusal, but said the Le Devoir article “speaks for itself”.

“I think it’s important for the chief justice to review the circumstances and make his own determination about whether it would be appropriate or whether it could give rise to a reasonable apprehension of bias by any of the litigants,” he said.

Wagner’s comments during a press conference in June 2022 also raised eyebrows.

At the time, the chief justice described the impact of the Freedom Convoy’s blockades on many Ottawa business and individuals (particularly “the most vulnerable”) as “deplorable”.

National Post

cnardi@postmedia.com

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