GOLDSTEIN: Can Canada’s chief justice be objective about the Freedom Convoy?
The Carney government is appealing to the Supreme Court regarding whether the use of the Emergencies Act was justified.
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The federal government, which has twice lost its legal argument that its use of the Emergencies Act to end the Freedom Convoy protests in early 2022 was justified, is now asking for leave to appeal to the Supreme Court of Canada.
The high court may or may not decide to hear it, but it it does, past comments by Supreme Court Chief Justice Richard Wagner condemning the Freedom Convoy will raise the question of whether he can be objective.
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Justice Paul Rouleau, who headed the public inquiry into the Trudeau government’s use of the Emergencies Act, concluded in 2023 that it was justified.
But in 2024, in a legal challenge led by the Canadian Civil Liberties Association and The Canadian Constitution Foundation, federal court Justice Richard Mosley ruled the government’s invocation of the EA was unreasonable, unjustified and violated Charter rights.
The government appealed that ruling and in January, a three-judge panel of the federal court of appeal unanimously upheld Mosley’s ruling, describing the government’s use of the Emergencies Act as beyond the government’s legal authority and infringing on Charter rights.
Both courts said while the disruptions caused by the Freedom Convoy protests were serious, the government had other means to address them and failed to meet the high standard necessary for invoking the Emergencies Act.
On Tuesday, the last day on which it could have acted, the Carney government asked for leave to appeal to the Supreme Court.
If it grants it, past comments by Justice Wagner could raise questions about his objectivity in hearing the case.
In April 2022, in an article headlined “Canada’s Chief Justice has not forgotten the stench of anarchy” Le Devoir reporter Marco-Belair Cirino quoted Wagner saying in an interview on the 40th anniversary of the Charter:
“What we saw recently on Wellington Street here is a small beginning of anarchy, where some people decided to take other citizens hostage, to take the law into their own hands, to not respect the mechanism. […] I find that worrying.”
Based on the interview, Cirino wrote Wagner believed:
“The attacks on the state, the justice system and democratic institutions, such as those carried out by protesters at the doors of the Prime Minister’s office and the Privy Council, Parliament, the Supreme Court of Canada and the Parliamentary Press Gallery between January 28 and February 21, must be strongly condemned by all figures in power in the country.
“He therefore disapproves of the political actors who latched onto the Freedom Convoy, which was made up of people of ‘good faith,’ but also of people ‘being manipulated’ by others seeking to circumvent the political ‘system.’ ”
He then quoted Justice Wagner directly saying:
“It doesn’t inspire good feelings in me. I find it worrying.”
In June 2022, the National Post’s Christopher Nardi reported Justice Wagner saying at a media conference that he had asked for more security at the Supreme Court following the protests and that some of its tactics were “deplorable” and should “never happen again” adding:
“Disinformation, I believe, is part of the explanation behind what we lived through in Ottawa last winter. Disinformation leads people who are otherwise of good faith to lose confidence in their institutions and lead to regrettable behaviour.”
Polls showed most Canadians supported the government’s use of the EA and many would agree with Justice Wagner’s description of the Freedom Convoy. But the question is whether he can be objective in ruling on the issue, if it comes to that.
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