Chief Justice Richard Wagner dismisses request to recuse from Emergencies Act appeal

The chief justice of the Supreme Court of Canada Richard Wagner hearing arguments Wednesday over whether Quebec's Bill 21 violates minority-language rights.  Photo by Via Supreme Court of Canada

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OTTAWA — Chief Justice Richard Wagner denied a request to recuse himself from the Emergencies Act case Wednesday, saying his 2022 comments about the Freedom Convoy protests have nothing to do with the issues on appeal.

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In a letter to parties on Wednesday, Supreme Court of Canada registrar Chantal Carbonneau said Wagner believed there was no legal reason for him to step aside from the case, which the top court is currently considering if it should hear.

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The decision is in response to a request in March from Canadian Frontline Nurses (CFN) and one of its members, Kristen Nagle, arguing that past comments by the chief justice regarding the 2022 Freedom Convoy protests “could lead to an apprehension of bias.”

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“I am writing to advise that Chief Justice Wagner has considered the certificates and letter, and has concluded that there is no actual or reasonable apprehension of bias that would require his recusal under the applicable legal test,” Carbonneau responded to parties.

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“In this respect, Chief Justice Wagner has advised that he did not, at any time, either directly or indirectly, comment on the Emergencies Act, RSC 1985, c 22 (4th Supp) or matters at issue in the proceedings,” she added.

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Shortly after, the CFN filed its request for Wagner to consider recusing himself from the case. The CFN and Nagel are involved in a separate but related application for leave to appeal to the Court, and Wagner’s decision on recusal stands for both cases related to the invocation of the Emergencies Act.

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At issue for the CFN were two sets of 2022 comments in which Wagner called the Freedom Convoy protest the “start of anarchy” and said participants took Ottawa residents “hostage,” according to submissions by CFN and Nagle.

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In an April 2022 interview with Montreal-based newspaper Le Devoir, Wagner said in French that some participants in the Freedom Convoy protests were “remote-controlled” people looking to short-circuit the political system, something that “does not fill me with good feelings.”

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“What we saw recently on Wellington Street, here, is the budding start of anarchy where some people decided to take other citizens hostage, to take the law into their own hands, to disregard the system … I find that worrying,” he said in French.

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Canada’s top judge also argued that the occupation of downtown Ottawa was fuelled in part by a “certain ignorance” and a “bad understanding” of Canadian law, the newspaper reported.

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Then in a press conference in June 2022, the chief justice described the impact of the Freedom Convoy’s blockades on many Ottawa business and individuals — particularly “the most vulnerable” — as “deplorable.”