Interview with the Chief Justice of Canada
Ahead of his address to the CBA's Annual General Assembly, Richard Wagner spoke to us about Canadians' confidence in the judiciary, his concerns about some courts returning to pre-pandemic habits, and the role of interveners
CBA National: According to an Angus Reid survey released last October, 48% of Canadians have confidence in the Supreme Court (while 43% do not). Over half (55%) say they no longer have confidence in our provincial courts. Should we be worried about these numbers?
Chief Justice Richard Wagner: I think it was in 2012 that [around] 31% had confidence. We're now at 48%. I see that as a positive sign, but there is still work to do. As I have always said, it's hard to trust something you're not familiar with, which is why people working in the justice system have a responsibility to help others get to know it better. I'm convinced that the more we educate people about the justice system, judges, their decisions and the judicial independence that drives them, the more that number will go up.
N: Last October, the Court travelled to Québec City to hear two cases in a bid to make the Court more accessible to Canadians. Do you have plans to travel elsewhere in the country?
RW: Absolutely. I can't tell you where at this point, as it hasn't been decided yet. There are regional considerations. We need a location that can accommodate us. But it has been a very successful initiative thus far—we travelled to Winnipeg [in 2019] and to Québec City. There was clearly a need for it, because people came out to see us. At the same time, it's not one-sided. Judges got to see citizens' true experience and discover first-hand what their priorities and issues are. I may be biased, but I think we have one of the best judiciaries in the world. We export our expertise to other countries—how judgments are delivered and written, knowledge about judicial independence and how judges are appointed. I chair the NJI (National Judicial Institute), and we were training judges in Ukraine for ten years until the war began. That leads me to conclude that we probably have the best trained judiciary in the world. I want Canadians to know that. One of the ways to achieve that is to travel to other cities every two or three years and allow people to become more aware of what we do.
N: During hearings in Québec City, you made several comments regarding the role of interveners. Do you have a specific message from the Court for them?
RW: It's crucial for us to hear the perspectives of people who are not involved as parties in a matter, so it's important to avoid repetition. As you know, interveners have five minutes, with the understanding that if someone before the court has really important and interesting insights, the Chief Justice can allow them more time. That happens sometimes when I think that, in the interest of the litigants, the intervener needs more time to present their point of view.
N: If you have any advice for interveners, what would it be?
RW: To ensure that they offer the court different insights than those of the parties.
N: The court does not provide its reasons regarding applications for leave to appeal. It receives several hundred a year, so it's probably unrealistic to expect that they be given for all requests, but should the occasional exception be made?
RW: I don't think so. First of all, consider the number—there are at least 400 applications for leave to appeal every year. We simply would not be able to get to them all if we had to give reasons for each application. There are many reasons why applications for leave to appeal are dismissed. It could be because it is not in the public interest. It could also be because the case is not ready, because we are waiting for other decisions from appellate courts across the country before making a decision. That means we can't start explaining in every case why we're hearing one case over another. When leaves are granted, it's because they are in the public interest. That's the important thing.
N: You co-chaired the Action Committee on Court Operations in Response to COVID-19, which acknowledged the many advantages of virtual hearings and easing of procedures. We're now hearing about courts backsliding into old habits, especially in family law matters. Are you worried that we're taking a step back?
RW: I've heard the same thing, that some courts are going back to their old ways of doing things. I think it's a mistake. I've said that COVID-19 was the crisis we needed to realize just how much our system had to be modernized. It would be unfortunate if we went backwards because people claim it's easier or because they prefer it. We need to build on new technologies. For example, our new Supreme Court portal launched on January 30, which makes it easier for lawyers and people who are self-representing to file documents securely. That's access to justice.
N: But that's a luxury for the Supreme Court. Currently, in many jurisdictions, there is a very real lack of resources.
RW: I'll point to statements by Chief Justice of the Superior Court of Quebec, Marie‑Anne Paquette, who said that the judicial system is held together with "duct tape." That says it all. And she's right. The system lacks legal resources. Technology hasn't advanced sufficiently yet. Employees quit because they aren't paid enough. For many years now, justice systems in democratic societies have been underfunded—not only in Quebec, not only in Canada, but all over the world. Governments have primarily invested in health and education, and that's essential, but the justice system has always come second, as if we could just figure it out for ourselves. Judges do indeed figure it out, they are creative people, but they don't have sufficient resources. There was the COVID pandemic, and there was the 2016 Jordan ruling that came as a warning that we need to invest in the justice system. It needs to be said that provincial governments have made investments, as has the federal government, but it hasn't been enough. We have a long way to go.
N: There's also anecdotal evidence of a burnout crisis in the judiciary. How do you react to that?
RW: I have been in the legal profession since 1980. In the past, we rarely discussed mental health in the legal field and the judiciary. There was probably a certain level of reluctance given the nature of these positions, not only for lawyers, but also for judges. It's a real issue and the COVID pandemic likely exacerbated it. The first way to deal with the problem is to talk about it. I travel to all the provinces, and judges are exhausted. Obviously, it's not discussed very much, but it's a reality that we need to pay close attention to. There is a risk of depression and of judges being unable to provide services that people are entitled to. That's why it's essential to see to the mental well-being of both judges and lawyers. The NJI provides training in that area. Our Lametti-Wagner action committee tackles it as well. I know that the Canadian bar as a whole is concerned by this issue. I think that more people and organizations working in law will start paying attention to it. We are on the right path compared to where we were a decade ago.
This interview has been translated from French, and edited and condensed for publication.