Supreme Court justice asked to consider recusing himself from Emergencies Act appeal
OTTAWA — A group involved in the Emergencies Act case says Chief Justice Richard Wagner should consider recusing himself from upcoming Supreme Court deliberations on the appeal because comments he made about the Freedom Convoy suggest he may be biased against the protestors .
The group argues it could be “inappropriate” for Wagner to participate in any appeal process involving the government’s use of the act during 2022 Freedom Convoy blockades because of those comments.
“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 to the court 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 choked streets around Parliament Hill to protest the government’s pandemic lockdowns and vaccine mandates.
(To date, lower courts have heard the various issues together — the use of the Emergencies Act and the standing of various parties — though the Supreme Court has not announced if it will do the same, or if it will grant the government an appeal at all.)
The SCC did not immediately respond to questions from National Post.
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 in French that some participants in the Freedom Convoy protests were “remote-controlled” 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 fuelled in part by a “certain ignorance” and a “bad understanding” of Canadian law, the newspaper reported.
In an interview, Alexander Boissonneau-Lehner, the lawyer representing Canadian Frontline Nurses and Nagle, 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”.
Boissonneau-Lehner said it’s reasonable to expect that Wagner’s decision about whether he should recuse himself in the Frontline Nurses request for leave to appeal will also apply in the case brought forward by the attorney general appealing the rulings on the government’s use of the Emergencies Act.
National Post
cnardi@postmedia.com
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