CBA National sat down with the Chief Justice of the Supreme Court of Canada following his remarks delivered to the CBA’s AGM.
CBA National: You spoke about judicial independence today, and the headlines have been full of stories about political interference in matters that threaten the independence of the judiciary – in the US, in Britain, even here in Canada – all bastions of liberal democracy. How much do you worry about a perceived increase on attacks on the judiciary?
Chief Justice Richard Wagner: Well, first all, let me be very clear on one thing. I think that Canada is very privileged on that issue. We have a very strong judicial independence compared to all other nations in the world, I would say. That said, I don’t think we should take anything for granted and that’s the risk. Because when we look at other countries — not very far from us and that are supposed to be great democracies —you realize that judicial independence is under attack. We have to think about that and we should never accept even the slightest attack on judicial independence because that’s the beginning of the end. That’s why I believe that it’s necessary to keep up [public] discourse about judicial independence and to what extent it’s fundamental to our democracy and to our liberty and freedom.
N: Is it harder in today’s environment to get help from your allies in the public arena who understand the importance of defending the independence of the judiciary?
RW: We are privileged to have allies like the CBA. The CBA has historically always defended judicial independence, and whenever a judge was attacked or the judiciary in general, the CBA has stood up and spoken for us. We need those people because we cannot defend ourselves in public, but what we can do, and that’s the nature of my work for the last two years as chief justice, is to invite the judiciary, in general, to talk about their work. The judges should explain to the people who we are, where we come from, how we were appointed, what we do, how we do it, because the more people will know about us, the more credibility we’ll have. The more information we give, people will realize that we have a good judiciary, probably one of the best in the world, and well trained.
N: On the notwithstanding clause, which you have said is “maintaining our democratic balance” in Canada, there has been criticism of it being invoked directly in legislation to pre-empt any court challenges. Do you have a view on that?
RW: I don’t think it’s up to the judge to decide and to comment on what the legislature should do or what the executive should do. That’s up to them to decide how they want to pass their law.
N: There’s a random quality to the types of matters that come before the Supreme Court. But do you perceive any patterns in the types of cases and issues that you are being asked to weigh in on?
RW: A good deal of our cases are in criminal matters and constitutional matters. We’ll hear cases whenever there is a topic of public interest when there is a controversy at the appeal level, for instance, on a matter of interpretation of the law, and we’ll hear some references from governments as well. Last year, we released a decision about orphan wells – an environmental matter on what extent companies exploiting wells are responsible for clean-up even after bankruptcy. We have a carbon tax issue next month. So, there are many more cases dealing with environmental issues that will probably come up. Indigenous rights are another topic that will be looked at by the Supreme Court. We are in the process of Reconciliation, so I would suspect that other matters will come to us.
N: Part of the Supreme Court’s job is to mediate between different legal systems – common law, Quebec civil law, and also over the last three or four decades, Indigenous legal traditions. Can you share your thoughts on the challenges you expect the court, will face in reconciling all those traditions?
RW: Our legal culture embraces diversity by definition. So, we’ve got civil law but common law, but we are also called as a court to interpret treaties which go back centuries, that were entered into between the Europeans and the Indigenous people who were recognized as a society with organizing principles and values. It’s important to remember that. And just like the common law will influence civil law and vice-versa, Indigenous principles and values and ways of living will also influence the way decisions are made.
N: Is it messy sometimes?
RW: Messy may be a word that is too strong. There’s nothing easy in those matters but it’s up to us to make the decisions, the right decisions.
N: As Honorary Chair of the National Action Committee on Access to Justice in Family and Civil Law matters, where do you see the most pressing needs, and concretely, how do you think fixing those challenges could best be accomplished?
RW: I think that the main problems still remain the cost and delays. And you know, the levels for legal aid are not high enough to allow people to take advantage of those programs. It’s still very costly. And I would suggest that the government should seriously consider increasing the legal aid levels because there are serious studies both in the U.S. and in Canada that will tell you that for every dollar invested in legal aid you have a return of $6 or even $10 in some instances. That’s only part of the solution. Access to justice is a very complex issue and it calls upon all stakeholders to do their part -- judges to facilitate the exercise of the recourses; the government to increase legal aid if possible; the bar, the law societies have a role to play as well.
N: What about the legal profession makes you optimistic right now? Pessimistic?
RW: I’m not pessimistic. I’m optimistic exactly for that reason because now everybody, I think, is sensitive to the issue of access to justice and you can see it in practice in reality. The Supreme Court released the Jordan decision a couple of years ago and it was a big signal and governments responded. They increased the budget for the justice system because the justice was the “parent pauvre” of the government for so many years in every province. And then with Jordan, governments in Canada realized that they have to invest in the justice system, and they did. It’s not perfect, but it’s better than it used to be, and so we’re going the right direction, I think. Law societies are responding, as well. Lawyers are changing their habits, judges as well.
N: Court observers have noticed that on your court, there appear to be more dissenting opinions – or at least fewer unanimous decisions. Any thoughts on that?
RW: It depends on the years. You know, when you look at history you will find years where there will be more, other years would be less. Other years we’ll find more concurring reasons. So you have to be careful about that, and statistics are hard to interpret sometimes. But that said, dissent is part of our DNA. We have a system which, because of judicial independence, everybody [on the court] may have a voice and can write decisions. And in Canada, we are nine justices coming from different provinces, speak different languages, come from different cultures, different training. Do you really expect nine people to be unanimous on every legal issue in Canada? No. You would find that in totalitarian countries though, where there are no differences between a judge and a politician. Thankfully, in Canada, we’re not like that.
N: The legal community is mourning the passing of Peter Hogg, whose textbook is apparently the most cited by the SCC. What do you consider to be his greatest contribution to legal thinking?
RW: I met Mr. Hogg quite a few times, and he’s one of our best authors, you know, writing on legal issues and he’s the one who proposed that the judiciary’s power to strike down legislation is part of a dialogue between the judiciary and the Parliament. I think that that theory is quite interesting and I think it is accurate as well. It’s his signature idea in terms of constitutional law.
N: I’m wondering if you can name us a favourite book or books.
RW: That’s a tough question because I’ve read quite a few books in my life but … Maybe one book that I read, when I was younger, which [stands out] is Gabriella Roy’s “Bonheur d’occasion” [The Tin Flute] It was a story that described the French Canadian reality of Montreal [in the 1940s]. There was something very on the mark about the story. And I may have read it at a time growing up when I was inclined to enjoy this kind of literature.
This interview was edited and condensed for publication.