To recuse or not?

There’s no guarantee that the Supreme Court of Canada will hear an appeal about the federal government’s use of the Emergencies Act, but if it does, one group says Chief Justice Richard Wagner should not be a part of it.

The federal government recently filed an appeal of the Federal Court of Appeal’s decision on its use of the legislation to the country’s top court. Immediately, one of the groups involved in that challenge demanded that Wagner recuse himself should the Court grant leave to hear the case.

The group, Canadian Frontline Nurses (CFN), is headed by three former nurses who organized protests outside of hospitals during the height of the pandemic and whose social media posts were known to spread vaccine misinformation and COVID-19 conspiracy theories. They’re calling for Wagner to recuse himself based on comments that were made to the media in the wake of the occupation of downtown Ottawa by the so-called “Freedom Convoy,” which the CFN associated with and participated in.

In particular, the CFN cites Wagner’s comments in an April 2022 interview with Le Devoir, where he said the occupiers took Ottawa residents “hostage” and likened the occupation to the initial stages of anarchy. “C’est un petit début d’anarchie,” he was quoted as saying.

Wagner also said in French that some participants in the occupation were “remote-controlled” and looking to short-circuit the political system, something that “does not fill me with good feelings.”

During his annual press conference in June 2022, he described the impact of the occupation on many Ottawa businesses and individuals, particularly “the most vulnerable,” as “deplorable.”

CFN’s attempt to participate in the original Federal Court challenge was dismissed for lack of standing. The Federal Court of Appeal dismissed the appeal of that finding. The group has filed its own appeal to the Supreme Court challenging the dismissal.

Though it is extremely rare, Wagner has recused himself on a previous occasion, according to the Court’s spokesperson.

“The chief justice recused himself from the Pascal Varennes v. His Majesty the King case because it was heard by his partner at the Quebec Superior Court,” says Vanessa Racine, director of communications for the Court, referencing Wagner’s spouse, Justice Catherine Mandeville.

Eugene Meehan, a partner with Supreme Advocacy in Ottawa and a former executive legal officer to former Chief Justice Antonio Lamer, says there is no precedent in Canada for a chief justice stepping aside over general public comments.

“Recusal is generally reserved for clear conflicts or actual prior involvement,” he says.

“The legal test is a high bar and requires a reasonable apprehension that the judge has effectively prejudged the legal issues, not merely expressed concern about events.”

A source who spoke on background says that during former Chief Justice Beverley McLachlin’s tenure, there was a move to have her recuse herself on any matter relating to abortion because she served as chair of the committee that decides on Order of Canada appointments, which selected Dr. Henry Morgentaler. A complaint was also filed with the Canadian Judicial Council, which was dismissed.

The source also noted an incident when former Justice Bertha Wilson spoke at a conference in the mid-1980s titled “Will women judges make a difference?” Again, there were complaints of bias lodged with the Canadian Judicial Council, claiming she should not be on the Court for any issues related to women.

While there have been complaints launched against Supreme Court judges, motions to recuse have been rarer. Former Justice Michel Bastarache was asked to remove himself from a case due to past writing and activism on language rights. However, the Court decided that nothing the applicants submitted would cause a reasonable person to believe he would not entertain any of the various points of view with an open mind.

The source noted that any parallel to this current request by CFN would be with Justice John Gomery during the inquiry into the sponsorship scandal. During proceedings, he made remarks to the media in which he referred to former Prime Minister Jean Chrétien having branded golf balls, which he called “small-town cheap.” When Chrétien subsequently took the stand during the inquiry, he came armed with branded golf balls from the White House and other world leaders to fire back at Gomery.

After Gomery’s report was released, Chrétien challenged it in Federal Court, as well as the Federal Court of Appeal. Gomery’s comments were found to have demonstrated a reasonable apprehension of bias. As a result, many of his findings were invalidated with respect to Chrétien and several other individuals.

In this instance, however, Meehan believes there is no basis for Wagner to recuse himself.

“His remarks were about the situation on the ground, not the legality or constitutionality of the Emergencies Act,” he says.