The rule of law does not survive on paper alone.
It survives on public confidence.
People must believe that the law binds everyone. Including the government. Especially the government. When citizens conclude the rules are bent for those in power, respect for law collapses into cynicism. Order breaks down soon after.
That is the real issue raised by Ottawa’s decision to keep defending its use of the Emergencies Act.
On Feb. 14, 2022, the federal government invoked the Act for the first time since it was enacted, granting itself extraordinary powers in response to the Freedom Convoy protests and related blockades. In January 2024, the Federal Court ruled the decision unreasonable and found that the measures violated Charter rights, including freedom of expression and the right against unreasonable search and seizure. In January 2026, the Federal Court of Appeal dismissed the government’s appeal, confirming the decision was ultra vires and unconstitutional.
Two courts. Two losses. Clear findings.
Yet Ottawa has now sought leave to appeal to the Supreme Court of Canada.
Yes, seeking leave is lawful. That misses the point.
In a constitutional democracy, governments show respect for the rule of law not by fighting to the last procedural breath, but by accepting constitutional limits on its powers. Courts exist to say no. When they do so twice — plainly and forcefully — the responsible response is restraint, not defiance.
The courts were clear. Parliament designed the Emergencies Act to be difficult to invoke. Its thresholds are narrow by design. The government failed to meet them. Most importantly, it failed to show that existing laws were insufficient to deal with the situation.
That matters because the Emergencies Act is not an all‑purpose policy tool. It is a constitutional circuit breaker. It authorizes exceptional powers only in exceptional circumstances. Those limits exist for a reason: to prevent a return to the abuses of the War Measures Act.
When a government pulls that lever and courts later rule the legal standard was not met, the lesson is obvious. Do not do it again. Do not try to justify it after the fact.
Instead, Ottawa advanced a troubling argument. The Act, it said, is outdated. It should be interpreted more broadly to reflect modern realities — including protests the government dislikes.
That is not interpretation. It is revision. And governments do not get to rewrite laws they find inconvenient.
The rule of law means governments are bound by the law as written. Government lawyers are supposed to advise compliance, not invent theories to stretch statutes past their breaking point. It would appear their legal counsel and political advisers were seeking a way for the government skirt around the fine tuned limits in the Emergencies Act rather than encouraging the government to stay in its proper lane.
By pushing this case to the Supreme Court after two decisive losses, the government sends a dangerous message: that executive overreach is something to be defended through persistence, not corrected through accountability. Even if leave is denied, the damage is done. The appearance is that power refuses to accept limits.
That alone should concern Canadians. But it is not the only problem.
This case now raises a second, equally serious issue: judicial legitimacy.
In April 2022, Chief Justice Richard Wagner gave an interview to Le Devoir describing the events on Wellington Street as “the beginning of anarchy.” He suggested some participants had “taken other citizens hostage” and said attacks on democratic institutions must be “denounced with force.”
Canadians are free to agree or disagree. That is not the issue.
The issue is role. And timing.
The Chief Justice of Canada publicly commented on events that were the subject of ongoing and foreseeable litigation — litigation that could reasonably reach his own Court. That is a problem. Not because it proves bias, but because it creates the appearance of bias.
Thirteen lawyers thought so too. They filed a complaint with the Canadian Judicial Council, arguing the remarks created a reasonable apprehension of bias. The Council dismissed the complaint as hypothetical.
That response misses the constitutional point.
Justice is not secured by insisting judges believe they can be fair. It is secured when a reasonable observer can trust that the process is impartial. Appearances matter. Especially in cases involving alleged abuses of state power.
When the head of the judiciary appears to prejudge contested facts, public confidence suffers. People begin to wonder whether courts are referees or participants. That doubt spreads quickly — and it is corrosive.
If the Supreme Court grants leave in this case, Chief Justice Wagner should recuse himself.
Recusal would not be an admission of wrongdoing. It would be an act of institutional humility. It would signal that the Court understands what is at stake: not just legal correctness, but public trust.
There is another reason trust is fraying. Unequal application of the law.
People will not respect rules enforced selectively. When citizens believe the law is harsh on some and indulgent toward others, it stops being a shared framework and becomes a political weapon.
The Federal Court of Appeal confronted that concern directly. It did not deny the protests were disruptive. It ruled that disruption alone does not meet the statutory test for a public order emergency. Political pressure does not lower legal thresholds. It raises them.
If the Supreme Court declines leave, the message is simple. The lower‑court rulings stand. The Emergencies Act remains confined to genuine emergencies. And the issue of recusal disappears.
If leave is granted, the burden grows heavier. The Court must decide the case in a way that strengthens — not strains — public confidence in judicial neutrality. That task is far easier if the Chief Justice steps aside.
Canadians are watching. Not for drama. For reassurance.
They want to know that the law still limits power. And that justice is not only done — but seen to be done.
