Carney’s Emergencies Act appeal traps the Supreme Court in a credibility crisis

The appeal forces the Supreme Court to rule on a case tied to Chief Justice Wagner’s past public condemnation of the trucker’s protests

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Prime Minister Mark Carney’s decision to appeal the Emergencies Act rulings puts the Supreme Court in an untenable position as Chief Justice Richard Wagner’s past public comments on the Freedom Convoy raise doubts about whether the case can be judged fairly.

After 60 days of silence, the government confirmed on Tuesday, the final day permitted under law, that it will seek leave to appeal to the Supreme Court, choosing to defend what two courts found were constitutional violations rather than admit that the Trudeau government violated Canadians’ Charter rights. The Prime Minister wants a third chance to prove them wrong, even as the appeal puts the Supreme Court’s credibility at risk.

The Federal Court of Appeal was clear. The government lacked reasonable grounds to believe a national security threat existed. The court held that the legal threshold for invoking the Act had not been met and that freezing bank accounts without prior judicial authorization breached the Charter, which protects Canadians from unreasonable government action.

Chief Justice Wagner publicly condemned the Freedom Convoy protests in April 2022, calling them “the beginning of anarchy where some people have decided to take other citizens hostage, to take the law into their own hands,” comments that now raise a constitutional problem if the case reaches the Supreme Court. He told Le Devoir that such protests must be denounced with force by all the figures of power in the country. He characterized protesters as “remotely guided” people with “a certain ignorance” of the rule of law.

Thirteen lawyers filed a complaint alleging apprehension of bias, meaning a reasonable person could question the judge’s impartiality. The Canadian Judicial Council, however, dismissed the complaint as unsupported and without substance.

Now, the case the Chief Justice has already publicly commented on may land before him. He faces an impossible choice. Recuse himself and acknowledge his comments created bias, undermining confidence in the Supreme Court. Or sit on the panel and render judgment where his public comments aligned with the government’s position against citizens whom the Federal Court of Appeal says were exercising Charter-protected freedoms.

If the Chief Justice recuses, Canada’s highest court hears one of its most important constitutional cases in decades without its Chief Justice. If he sits, Canadians watch their Chief Justice rule where he already described the protests as involving people taking other citizens hostage.

The Prime Minister’s decision reflects the constitutional recklessness that marked his previous support for freezing bank accounts. He endorsed using the financial system as a weapon against protesters. The Federal Court of Appeal ruled that the measures were not justified under the law and breached Charter protections. Now he asks a Supreme Court presided over by a Chief Justice who publicly supported strong action against the protests to reverse that finding.

The appeal serves no principle beyond face saving. It shifts the focus from the Federal Court of Appeal’s ruling to whether the Supreme Court can be seen as impartial in judging this case.

The Prime Minister inherited this mess from Trudeau and chose to own it. Several ministers from the Trudeau era who were central figures in that government still sit around the cabinet table. Their judgment is on trial too. Yet he asks the Supreme Court to declare that freezing citizens’ bank accounts without warrants or judicial oversight somehow squares with the Charter.

The political calculation is transparent. An appeal keeps the issue alive and shields his colleagues until after the next election. An appeal is also a delay, and delay is how governments avoid accountability. Canadians already struggle with institutional trust, particularly when the country’s highest court is drawn directly into the controversy.

The Chief Justice’s predicament shows the risk of judges making public comments. His 2022 comments reflected a broader consensus that the convoy was dangerous and the Emergencies Act was necessary.

But consensus is not law. Courts ruled that the government violated Charter rights and that the emergency powers were unjustified. That’s on the record. The Chief Justice, who must now adjudicate these findings, already publicly declared the protests were anarchic hostage-taking.

The federal government’s appeal all but guarantees one outcome: whatever the Supreme Court decides, many Canadians will believe the fix was in. If he sits and rules for the government, civil libertarians will point to his 2022 comments. If he sits and rules against the government, both sides will question why he did not recuse.

The Prime Minister and Cabinet chose this path. By pursuing this appeal, they have ensured that whatever the Supreme Court decides will be seen by many as compromised.

Marco Navarro-Genie is vice-president of research at the Frontier Centre for Public Policy and co-author, with Barry Cooper, of Canada’s COVID: The Story of a Pandemic Moral Panic (2023).