Chief Justice Wagner speaks alongside his fellow Supreme Court of Canada Justices during the Ceremonial Opening of the Judicial Year at the Supreme Court of Canada in Ottawa in October, 2025.Sean Kilpatrick/The Canadian Press
The question of whether a judge has shown bias is supposed to be viewed through the eyes of ordinary Canadians. The Chief Justice of Canada’s Supreme Court, Richard Wagner, is failing to look critically at himself through that lens.
Four years ago, the chief justice told Le Devoir that the convoy protests in Ottawa that year were “un petit début d’anarchie” – the beginning of anarchy. Now the Supreme Court is considering whether to hear an appeal involving those protests. And Chief Justice Wagner is refusing to recuse himself if the court accepts the case.
His position is wrong. It’s not a close call when viewed through the eyes of a reasonable, informed person. And that is the standard, established by judges themselves: a look at the impression the judge has given the public. “Even if he was as impartial as could be,” the British judge Alfred Denning wrote in a 1969 ruling on a judge’s perceived bias, “nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”
The reason: “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”
Opinion: Ottawa’s appeal of the Emergencies Act case shows contempt for civilians and corporations
The public’s confidence in Canada’s institutions is at the heart of the case before the court. It’s about whether the federal government acted lawfully when it used the Emergencies Act to shut down the 2022 convoy protests in Ottawa. The act is, as the name suggests, a break-glass-in-case-of-emergency tool. It allowed the federal cabinet temporarily to restrict freedom of expression and search-and-seizure protections, among other constitutional rights. It had never been used since it became law in 1988.
The case is a big deal – the Supreme Court’s opportunity to tell future governments about lawful and unlawful uses of these overwhelming powers and what would be the final legal word on the controversial use of the Emergencies Act.
Why won’t Chief Justice Wagner recuse himself? Through a court official, he said he made no comment on the use of the Emergencies Act, directly or indirectly, or “on matters at issue in the proceedings.” That seems a stretch. Isn’t the nature of the protests a matter at issue?
Group asks Supreme Court chief justice to recuse himself from Emergencies Act case
In any event, the chief justice’s response is legalistic. When we speak of a reasonable and informed person, we are not speaking of someone who can recite the four categories of emergency in the Emergencies Act. That would be to turn the reasonable person into a lawyer. The definition of a national emergency is, in part, “an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians.” In other words, emergency means emergency. The reasonable person comprehends.
And what is anarchy? It is a rejection of law, of institutions, of authority. Insurrection, chaos, rebellion, mob rule – these are among the synonyms found on the website thesaurus.com and indicate what the reasonable, informed person might understand the chief justice to have been saying.
The last Supreme Court judge to recuse himself was Justice Mahmud Jamal, in the Bill 21 case from Quebec this spring on minority rights and the notwithstanding clause. Justice Jamal had sat on the board of directors of one of the parties in that case. He agreed to receive submissions on recusal. Although he didn’t agree recusal was necessary, he withdrew so he wouldn’t be a distraction. (For Chief Justice Wagner, such submissions were not needed, since the initial request laid out reasons in detail.)
Chief Justice Wagner, since succeeding Beverley McLachlin in late 2017, has given speeches on the need for judges to speak to the public and help demystify the justice system, which he views as essential transparency in an age where mistrust threatens democracies.
We hardly want to silence the chief justice; the concern comes when judges stray past the common-sense guideline to refrain from commenting on a matter that could come before the court. The chief justice may have forgotten about judge John Gomery and the inquiry he led into the federal sponsorship scandal two decades ago; his comments in interviews led to a court finding of bias.
To a reasonable person, anarchy sounds very much like an emergency, and commenting on a situation you might rule on sounds very much like a conflict. The Chief Justice should reconsider.