Richard Wagner, C.J.C.

Judicial Profile: Chief Justice of Canada whose most controversial rulings include a unanimous Supreme Court decision striking down consecutive parole-ineligibility periods for multiple murderers and a divided decision allowing Charter damages claims against government for unconstitutional legislation.

Overview

Summary of Controversy

Chief Justice Wagner’s most publicly controversial judgment is R. v. Bissonnette, where he wrote for a unanimous Supreme Court of Canada striking down section 745.51 of the Criminal Code. That provision allowed judges to stack 25-year parole-ineligibility periods for multiple murderers. The ruling meant that Alexandre Bissonnette, who murdered six Muslim worshippers at the Quebec City mosque in 2017, must receive a realistic opportunity to seek parole after 25 years rather than facing 40, 50, 75, 100, or 150 years without parole eligibility.

Critics argued that the decision reduced punishment for the worst multiple murderers, undermined Parliament’s sentencing policy, and forced victims’ families to face eventual parole hearings. Supporters argued that parole eligibility is not release, that every murderer still receives a mandatory life sentence, and that Canadian constitutional law requires every offender to retain some realistic possibility of rehabilitation.

A second major controversy is Canada (Attorney General) v. Power, where Chief Justice Wagner co-authored the majority reasons holding that the state may be liable for Charter damages when it enacts unconstitutional legislation in limited circumstances. Critics argued that the ruling expanded judicial supervision over Parliament and threatened parliamentary privilege; supporters argued it preserved government accountability for serious Charter violations.

Most Controversial Rulings

R. v. Bissonnette, 2022 SCC 23

Subheadline: The Supreme Court ruling that gave Canada’s worst multiple murderers a constitutional right to a realistic chance at parole.

Case Summary: Alexandre Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder after the 2017 Quebec City mosque attack, in which he killed six worshippers and seriously injured others. At sentencing, the Crown sought consecutive 25-year parole-ineligibility periods under section 745.51 of the Criminal Code. A 150-year period was possible under the legislation. The sentencing judge found the provision unconstitutional but imposed a 40-year parole-ineligibility period. The Quebec Court of Appeal reduced that to 25 years. The Crown appealed to the Supreme Court of Canada.

What the Court Decided: Writing for a unanimous Court, Chief Justice Wagner held that section 745.51 violated section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment. The Court held that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity because it presupposes that an offender is beyond redemption. The Court declared the provision invalid from the time it was enacted in 2011, meaning Bissonnette’s parole-ineligibility period remained 25 years.

Consequences for Victims or Society: The ruling affected not only the Quebec City mosque case, but all Canadian cases involving multiple murders where judges had imposed, or might have imposed, consecutive parole-ineligibility periods. For victims’ families, the practical consequence is that offenders convicted of multiple first-degree murders may apply for parole after 25 years, even though parole eligibility does not guarantee release. Families and survivors may also face future parole hearings and renewed public attention to the crimes.

Why the Ruling Was Controversial: Critics argued that the decision was soft on the worst offenders because it removed the ability of sentencing judges to impose longer parole-ineligibility periods for multiple murders. The National Council of Canadian Muslims said the ruling would be received with difficulty by many in the community affected by the attack and warned that the wounds of victims and survivors would be reopened each time Bissonnette appears before the parole board. The Islamic Cultural Centre of Quebec said the decision did not give due consideration to the atrocity of multiple murders or the hateful, Islamophobic, and racist nature of the crime.

Public Reaction: Global News reported that families of the Quebec City mosque victims feared the ruling meant the 17 children who lost a father could one day meet the killer in the streets of Quebec City. Mosque co-founder Boufeldja Benabdallah said the decision “breaks the balance” between rehabilitation and victims’ sense of justice. The ruling also prompted political debate over whether Parliament should respond legislatively or even use the notwithstanding clause.

Counterpoint / Supportive View: Supporters argued that the decision did not free Bissonnette, did not reduce his life sentence, and did not guarantee parole. Criminal-law commentators emphasized that parole eligibility means only the right to ask the Parole Board for release. The Court’s reasoning was grounded in the idea that even the most serious offenders cannot be sentenced on the basis that they are permanently incapable of rehabilitation.

Appeal History: This was a final Supreme Court of Canada decision. The Court dismissed the Crown’s appeal from the Quebec Court of Appeal and declared section 745.51 invalid from the time it was enacted.

Canada (Attorney General) v. Power, 2024 SCC 26

Subheadline: A divided Supreme Court ruling that critics say opened the door to judicial supervision of Parliament’s law-making process.

Case Summary: Joseph Power was convicted in 1996 of sexual-assault offences and later sought a record suspension after completing his sentence and training as a medical radiation technologist. Parliament enacted legislation in 2010 and 2012 that made him permanently ineligible for a record suspension. Those laws were later found unconstitutional in related proceedings. Power then sought Charter damages, arguing that the unconstitutional legislation harmed his employment prospects and rights.

What the Court Decided: Chief Justice Wagner and Justice Karakatsanis wrote the majority reasons. The Supreme Court held, in a divided 5-4 decision, that the state is not absolutely immune from Charter damages for making unconstitutional legislation. The majority held that damages may be available where legislation is clearly unconstitutional, enacted in bad faith, or amounts to an abuse of power.

Consequences for Victims or Society: This was not a criminal sentencing case, but it arose from a person convicted of sexual-assault offences seeking compensation after being denied a record suspension under unconstitutional legislation. The broader consequences are constitutional and institutional: the ruling affects when taxpayers may be liable for Charter damages, how courts review government law-making, and how parliamentary privilege, legislative autonomy, constitutionalism, and the rule of law interact.

Why the Ruling Was Controversial: Critics argued that the ruling weakened parliamentary privilege and expanded judicial power over the legislative process. University of Alberta law professor Gerard Kennedy argued that the decision was inconsistent with traditional conceptions of separation of powers and parliamentary privilege. Macdonald-Laurier Institute commentary by Kerry Sun, originally published in the National Post, argued that Power embraced judicial supervision over law-making and reflected an expansive view of judicial authority.

Counterpoint / Supportive View: Supporters argued that the ruling preserves accountability where government enacts clearly unconstitutional laws or acts in bad faith. The Asper Centre for Constitutional Rights described the decision as confirming that the Crown does not have complete immunity from damages, while recognizing that the threshold for damages remains high. The Supreme Court’s own summary described the decision as allowing damages only in limited circumstances.

Appeal History: This was a final Supreme Court of Canada decision. The Court dismissed the Attorney General of Canada’s appeal from the Court of Appeal of New Brunswick.

Sources

• Supreme Court of Canada — official biography and current status
• Government of Canada — 2012 biographical note for Richard Wagner
• Prime Minister of Canada — 2012 appointment to the Supreme Court of Canada
• Prime Minister of Canada — 2017 appointment as Chief Justice of Canada
• CanLII — R. v. Bissonnette, 2022 SCC 23
• Supreme Court of Canada — Case in Brief for R. v. Bissonnette
• National Council of Canadian Muslims — reaction to Bissonnette decision
• Global News / Canadian Press — victim-family and mosque reaction to Bissonnette decision
• Al Jazeera — summary and public reaction to Bissonnette decision
• Asper Centre — legal commentary on R. v. Bissonnette
• CanLII — Canada (Attorney General) v. Power, 2024 SCC 26
• Supreme Court of Canada — Case in Brief for Canada (Attorney General) v. Power
• Asper Centre — supportive commentary on Canada (Attorney General) v. Power
• Gerard Kennedy — Power Over Parliament, academic critique of the Power decision
• Macdonald-Laurier Institute / National Post — critical commentary on Chief Justice Wagner and Canada (Attorney General) v. Power
• TheCourt.ca — legal analysis of Canada (Attorney General) v. Power