Ben Woodfinden: Chief Justice Richard Wagner is disappointed in Canada

Bust of Chief Justice Wagner in the Supreme Court of Canada's Grand Entrance Hall in Ottawa. Photo by Christopher Nardi /National Post

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Each June, Chief Justice Richard Wagner holds a news conference, and each one tells you a little more about how he understands his job at the apex of the Supreme Court. This year’s brought the now-familiar themes, amongst them a warning that criticizing court decisions risks casting judges as “partisan actors” or as “obstacles to the will of the people.” A non-partisan judiciary, he said, one “sheltered from all politicization,” is essential to the rule of law. 

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He’s at least right that about the second part, but he has spent his tenure undermining the rule of law he claims to venerate. If the judiciary wants to be sheltered from all politicization, perhaps its chief justice ought not spend his Junes wading into political debate. You cannot appoint yourself a public commentator and then claim immunity from public comment. 

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This is not a one-off. Early in his tenure, Wagner told reporters the chief justice has “an obligation to speak to the people,” to be discharged “by our presence, by our speeches.” In 2024 he told critics, elected leaders included, to read the rulings before complaining. The result is the most publicly visible chief justice in living memory, who casts himself as liberal democracy’s sentinel. 

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Then there is the bust. A bronze likeness of the sitting chief justice now stands in the Supreme Court’s entrance, paid for by a donor the court won’t name, at a cost it won’t disclose, which Wagner, who posed for the sculptor, says he cannot identify. A man whose mission is transparency cannot see the problem with a secretly funded monument to himself. 

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All of this would be unbecoming if it stopped at vanity. It does not. In the spring of 2022, Wagner told Le Devoir the Freedom Convoy was “the beginning of anarchy” and said some protesters had set out to “take other citizens hostage.” Strong words. And, four years on, a problem, because the appeal over Ottawa’s use of the Emergencies Act is now before his court, and Wagner won’t step aside. His comments, he insists, had “nothing to do with the issues on appeal.” 

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The test for recusal has never turned on what a judge privately believes he can set aside. It turns on how a failure to recuse looks to a reasonable, informed observer. “Justice should not only be done,” as Lord Hewart put it a century ago, “but should manifestly and undoubtedly be seen to be done.” Hard to see how a chief justice who called the convoy an act of anarchy can be seen to approach an appeal about it with an open mind. 

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And the appearance problem is not new. Lawyers raised it in 2022, in a complaint to the Canadian Judicial Council, the body that oversees the conduct of federally appointed judges, which Wagner himself chairs. The Council dismissed it, reasoning that with no Emergencies Act case yet before the court, the worry was merely hypothetical. Well, it is not hypothetical now. He said the quiet part aloud, in print, with his name on it, and the warning the council waved away as premature has arrived right on schedule.