FROM “THEORETICAL” TO IMMEDIATE

In 2022, a coalition of Canadian lawyers filed a formal complaint with the Canadian Judicial Council regarding a reasonable apprehension of bias on the part of Chief Justice Richard Wagner. The complaint arose from his public comments characterizing the Freedom Convoy as an attack on democracy and the rule of law.

At the time, the Council quickly dismissed the complaint, treating the concern as premature and “theoretical,” on the basis that no such matter was yet before the Court.

It is no longer theoretical.

With the federal government now appealing the ruling on the unlawful invocation of the Emergencies Act, the very issues that gave rise to that complaint are now poised to come before the Supreme Court of Canada.

This is precisely the scenario that was previously brought to the Council’s attention.

Should Chief Justice Wagner participate in adjudicating such an appeal, despite having publicly expressed strong views on the underlying events, it would raise a clear and serious concern regarding a reasonable apprehension of bias—one that risks undermining public confidence in the impartiality of the Court.

The duty to preserve that confidence does not rest with litigants alone. It rests first and foremost with the Court itself.

Recusal, in such circumstances, is no longer theoretical. It's essential.