Chief Justice of Canada's annual press conference

Opening statement from the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada

Good afternoon, everyone. Thank you for joining me at this, my third annual press conference. When I became Chief Justice two and a half years ago, I undertook to hold this annual event to update you on the Court’s work and answer questions. And I am glad to be able to do this, even as we deal with a global pandemic.

Things are very different today than when we last met a year ago. The pandemic has fundamentally changed our society and the way we interact with each other. Some of that might be permanent. It has forced courts to look at different ways of working and accelerate steps toward modernization that were long overdue. Courts have been prioritizing the most urgent cases and using electronic and remote methods to hear cases and continue to deliver justice. But even with all hands on deck, with court staff and judges working all-out across the country, the consequences will be lasting.

At the Supreme Court, like many courts, we have made a number of practical changes. We moved to video-conference hearings for the cases we heard last week. While we have had the capacity for counsel to appear by video-conference for 35 years, last week was the first time ever that we had all participants, including the judges, online. We even allowed members of the public to register as virtual “observers,” although as always people could simply watch the hearing live on our website. All of this has been an adjustment, but one made easier thanks to the hard work of our staff and the collaboration of parties and counsel across the country. From the bench, the process of hearing from and interacting with counsel is almost as natural as it would be in the courtroom. And aside from a few glitches, which are always to be expected when you try something new for the first time, I think it was a resounding success.

Yet we are fortunate. As complicated as the process is, the Supreme Court is an appellate court – Canada’s top appellate court. We hear fewer cases than other courts do. We don’t hear from witnesses. We have access to technology and expertise that other courts may not, due to resource constraints. We need to ensure that all courts can continue to deliver justice to Canadians, which is our duty as the judiciary.

Together with the Minister of Justice, the Honourable David Lametti, I established an Action Committee comprised of experts in the justice system, public health, and workplace safety. It is an “action” committee in the true sense of the word. The members of the Action Committee, which include three other Chief Justices, in addition to myself, have identified the challenges of jury trials and hearings in small courtrooms, circuit courts, and remote courts as our immediate focus. We are also looking at the longer-term effects the pandemic will have on our justice system and how we can address those. And we are taking the opportunity to start the conversation about long-standing issues that we can improve for the future.

Our justice system was not prepared for a pandemic emergency, and as a result many things immediately came to a halt. Courthouses were closed. Trials were postponed. The Minister of Justice and I knew the system had to keep working, but that we had to do it safely, protecting the health and safety of all participants. I was a lawyer for 25 years, and presided over countless trials, including jury trials, as a judge. Last year, I said at this press conference that it was time to start taking “action for justice.” As Chief Justice, I can’t do much directly – but I can use my experience to propose and discuss practical and pragmatic solutions with stakeholders. At the very least, we have to make sure that the problem of delay, which was so chronic before, does not get substantially worse. Let me be clear : To do nothing would be irresponsible.

These are not simple challenges and there are no simple solutions. But we have some of the best minds in the country working on these problems, not just through our Action Committee but also through the Canadian Bar Association, The Advocates’ Society, and others. All stakeholders in the justice system have a responsibility to contribute to solutions. I’m confident the changes we make will make our justice system more resilient and more efficient in the years to come.

I’ve said before that judges don’t live in ivory towers, and that we are part of the society that we live in. We could not do our jobs if we were not acutely sensitive to what was happening in the world around us. But as judges, we must remain independent and impartial. We speak mainly through our judgments.

In recent weeks, we have all seen people around the world raise their voices against racial discrimination and racial violence. Confronting injustice, wherever it shows itself, is a good and necessary thing to do.

In Canada, Section 15 of the Charter guarantees everyone equal protection and equal benefit of the law without discrimination, including discrimination based on race. Unfortunately, as the Supreme Court has noted, that guarantee hasn’t always been fulfilled.

Just over a year ago, in Le, the Court cited abundant research showing the pernicious effects racial profiling have had on racialized communities in Canada. The Court noted that racialized communities have disproportionate levels of contact with police and the justice system, and they are more likely to have their rights violated or to be injured or killed in interactions with police. These are hard facts, but they are facts.

We also know that the Indigenous community has long suffered stereotyping, bias, and discrimination. This has been well documented by the Truth and Reconciliation Commission. The Supreme Court took note of this in Barton. In this case, the use of dehumanizing stereotypes about an Indigenous woman meant an accused person had to be tried again. In Ewert, the Court described how systemic discrimination against Indigenous inmates has led to worse outcomes for Indigenous offenders who, for example, are less likely to get early release.

In all of these cases, we see clearly how racial biases and discrimination deliver injustice.

I have said many times that all Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an “other” when they confront it. Judges sitting on the bench in Canada today, whatever their background, care deeply about delivering justice to all Canadians and make great efforts to understand all aspects of the legal issues they confront. This includes racial context, implicit bias, and systemic challenges. Organizations like the Canadian Judicial Council and the National Judicial Institute, which I am very proud to chair, provide guidance and education for judges in this country. This is a priority and we have created a number of excellent programs and resources to help with this. I also think there is a growing awareness of the need for our courts, including our highest court, to reflect the diversity of Canadians. I certainly would welcome the insights and perspectives this could bring.

The last year has been a busy one for the Court. Last July, the Minister of Justice and I signed an Accord aimed at recognizing and reinforcing the Court’s independence. The Accord sets out the relationship between the Chief Justice and the Minister of Justice, and furthers important goals of clarity and openness.

I would also mention that in December, the Court delivered an important decision on administrative law. The Court recognized that this area of law was unclear and, in some cases, unworkable. My colleagues and I decided it was time to look at it again, and chose three cases on two different issues to allow us to come up with a new approach. Our new framework, set out in Vavilov, changed the way courts look at administrative decisions, with the goal of making the law clearer and more predictable. This will increase access to justice by helping people better understand how courts will look at the administrative decisions that affect them.

As you may know, access to justice is an issue I care about deeply. It is why, with the support of my colleagues, I decided to take the Supreme Court to hear two cases in Winnipeg last fall, to hear cases outside of Ottawa for the first time in history. Hundreds of people watched us in action as we heard two cases. All together, we spoke to thousands of high school students and hundreds of law students. We also met with members of Indigenous groups, the francophone community, and the legal community. My colleagues and I answered questions from the public and held a meet-and-greet with members of the public at the Canadian Museum of Human Rights. And we hope to do this in another city in 2022.

Access to justice is why we publish our annual Year in Review, which you can see on our website. It’s why we publish our plain-language Cases in Brief to explain our reasons and why we decide the outcomes we do.

In fact, I see access to justice as a common thread between adaptations the justice system is making as a result of the pandemic, and the efforts required to fundamentally modernize the justice system. We are in a difficult time, there is no question. But a crisis can, and indeed must, be the time for meaningful change. I hope that change will happen, and that I will get to tell you about it next year.

But for now, let me take your questions.

 

Opening Statement by the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada
On the occasion of the Chief Justice of Canada’s annual press conference
Ottawa, Ontario
June 18, 2020