2020
Year in Review

Message from the Chief Justice

Along with millions of Canadians in 2020, the Supreme Court of Canada found innovative ways to pivot, adapt and persevere through a global pandemic. Our dedicated employees introduced new technologies, streamlined processes and implemented protocols in collaboration with public health authorities to ensure everyone’s safety and health while serving Canadians. I am proud of the Court’s agility and commitment to maintain access to justice throughout a devastating public health crisis.

Yet long before Covid-19, Canada’s courts were plagued with deficiencies such as backlogs and delays. They required resources and upgrades. Courts were slow to adopt modern methods and tools for working. The pandemic gave all parties no choice but to confront these realities. In 2019, the Supreme Court of Canada celebrated holding hearings outside Ottawa for the first time. In 2020, we marked the unexpected milestone of holding hearings online.

Chief Justice Richard Wagner

Courts are a pillar of Canada’s democracy and an essential service. In that vein, I worked with the Minister of Justice to establish an Action Committee on Court Operations in response to Covid-19. It provides national guidance to all provinces and territories on how to restore the full operation of Canada’s courts while keeping staff and court users safe.

Many Canadians decided to get back to basics in 2020. People started baking bread, riding a bike or camping. As for me, I adopted a host of new technologies at the Court, including online meeting tools that helped me stay in regular touch with my grandchildren. I also spent a great deal of time considering the state of Canada’s constitutional basics – a stable democracy and justice system. They remain robust because Canada has strong institutions and a constitutional foundation that enshrines judicial independence as a core principle. I feel this is something we should all be proud of, and never take for granted.

While our historic building remained physically closed to the public for most of the year, we continued to welcome Canadians through our live webcasts, remote tours, website and social media accounts. Your Supreme Court of Canada will continue to find creative new ways to remain open and accessible to you in 2021 and beyond.

Delivering Access to Justice in a Global Pandemic

Snow-covered Veritas

Access to justice is not just a fundamental right; it is a basic human need crucial to our democracy and rule of law.

No one anticipated the global pandemic and the effect it would have on courts across Canada, including our own. In March 2020, courts across Canada had to suspend or reduce operations to comply with physical distancing, and other health and safety requirements.

Many courts allowed only urgent matters to proceed through remote hearings, while they worked on plans to deal with other matters. The Supreme Court postponed some spring hearings in order to modify the courtroom according to the specifications of local public health authorities. Across Canada, people and businesses had to wait longer for their day in court.

Despite this unprecedented public health emergency, judges and staff at the Court took care to implement new processes, protocols and technologies to hear cases and deliver justice to Canadians. Judges continued to issue judgments on appeals and leave applications. Cases continued to move forward through the use of electronic case files. While the Court long had the ability to use videoconferencing during hearings on an exceptional basis, using new technology became routine in 2020.

In June, the Court used Zoom to hold three virtual appeal hearings, and one hearing on an application for leave to appeal. The Court again leveraged technology to provide simultaneous translation and uphold its duty to deliver justice in both of Canada’s official languages. The Court also welcomed some members of the public into these virtual hearings, while continuing its practice of webcasting hearings live on its website.

In September, the Court held a special session to hear appeals that had been postponed in the spring. In collaboration with local public health authorities, the Court heard arguments in a modified courtroom. The bench was extended to the floor to ensure physical distancing, and clear barriers were installed between judges and at a few other places in the courtroom. With the judges present in the courtroom, some lawyers appeared in person while others appeared by video.

The pandemic brought home the fact that our courts must be agile and resilient. This was done, and continues to be done, in a way that is mindful of the commitments our justice system makes to citizens – including transparency, procedural fairness, accessibility, independence, and quality.

Chief Justice Wagner in his office preparing for the Court’s first virtual hearing

Justice Abella in the courtroom during a hybrid hearing

Justice Rowe in his office during the Court’s first virtual hearing

Improving Access to Justice and Judicial Information

The Supreme Court of Canada is always looking for new and better ways to communicate with people. This became even more important during the pandemic, when we were no longer able to welcome the public for guided tours or hearings.

In 2018, we began publishing Cases in Brief, plain-language summaries of written decisions meant to be understood by the general public. We have continued to refine and improve these summaries to help all Canadians understand the law and how it may affect them in their daily lives.

What you are reading is the Court’s third edition of our Year in Review. This is yet another way we aim to make the Court more accessible to the public in an engaging way.

Among the ways Supreme Court judges contribute to improving access to justice and judicial information is through speeches and lectures across Canada and internationally. These activities were limited in 2020 due to the pandemic, yet the judges continued to deliver speeches and engage with Canadians virtually. The Chief Justice also spoke to journalists and responded to their questions at his annual news conference.

Justice Moldaver in his office

Chief Justice Wagner at his annual news conference

Judicial Independence: A Constitutional Value

Parliament and the Supreme Court are just down the street from each other in Ottawa. Yet they are very separate institutions. Canada has three different – but equal – branches of government, each with tasks and powers set out for them in the Constitution. The executive decides policy. The legislative branch makes and passes laws. The judiciary interprets those laws. Judges cannot tell the executive what policy to make, or the legislature what laws to pass. All courts can do is strike down what is not consistent with the law, and give advice on what might be done to fix it. By the same token, neither the executive nor the legislature can tell the judiciary what cases to hear or how to decide them. This is what judicial independence means.

Chief Justice Wagner and Prime Minister Trudeau before the Speech from the Throne

The three branches provide important checks and balances. Members of the executive and legislative branches are politicians, most are elected. Judges are appointed and do not need such public approval. This is not some kind of personal privilege. It is because judges have a different role. The equilibrium of all three branches is what supports Canada’s vibrant democracy, strong rule of law, and robust protections for people’s rights and freedoms.

Judicial independence is one of those phrases heard from time to time. It is bland enough that it can be easy to gloss over without a thought. Yet, it is crucial to this equilibrium. Without it, these important values would be unbalanced. While the scales of justice may tip to one side or another, the scales of democracy must not.

This is why the “Accord to strengthen the independence of the Supreme Court of Canada,” signed in 2019, is so important. It asserts the Supreme Court’s independence from the policy and legislative functions of the other branches.

Politicians are expected to have their finger on the pulse of the people. They ensure the state responds to their evolving needs and wants. The judiciary is meant to be a check on that. Judges do not decide based on what is popular. They make decisions based on what is right, in the context of our legal traditions and rule of law.

These are all very basic constitutional concepts, but in an age of misinformation and disinformation, they can become conflated and confused. Judges are not politicians. Politicians are not judges. They are different, equal and meant to keep each other in balance. Throughout our nation’s history, they have done so.

In keeping this balance, Canadians have built a democratic system that truly works. It works so well that people do not often notice it. It is like oxygen in the air; necessary for life, but not something the public necessarily thinks about until it is not there anymore. By that point, of course, it would be too late.

Canadians cannot take what we have built for granted. Canada and its institutions are strong because people continue to have confidence in them. This is not to say that all of what we have worked for will disappear. But it is possible. Other countries know this very well. Their citizens once thought, “it can’t happen here.” It can’t, until it does. These are troubled times. The rule of law and judicial independence are under threat around the world. No one should be complacent. Together, people should protect the delicate balance Canadians throughout history have worked so hard to get right.

Judges of the Supreme Court of Canada

Nine judges sit on the Supreme Court of Canada, including the Chief Justice. By law, three judges have to be from Quebec. This is because Quebec applies civil law for many non-criminal issues, which is very different from the common law applied in the rest of Canada. By tradition, three judges are from Ontario, two are from Western Canada, and one is from Atlantic Canada.

Supreme Court of Canada judges are appointed by the Governor in Council, which is when the Governor General acts on the advice of the federal Cabinet. To qualify for appointment, Supreme Court judges must have either been a judge of a superior court or a lawyer with at least 10 years of experience at a provincial or territorial bar.

A minimum of five judges must hear each appeal, though there are usually seven or nine.

Chief Justice Richard Wagner
Born: 1957 (Montréal, QC)
Appointed: 2012 (Quebec)
Appointed as Chief Justice: 2017
Law school: University of Ottawa
Years on the bench*: 15

Justice Rosalie Silberman Abella
Born: 1946 (displaced persons camp in Stuttgart, Germany)
Appointed: 2004 (Ontario)
Law school: University of Toronto
Years on the bench*: 45

Justice Michael J. Moldaver
Born: 1947 (Peterborough, ON)
Appointed: 2011 (Ontario)
Law school: University of Toronto
Years on the bench*: 31

Justice Andromache Karakatsanis
Born: 1955 (Toronto, ON)
Appointed: 2011 (Ontario)
Law school: Osgoode Hall
Years on the bench*: 19

Justice Suzanne Côté
Born: 1958 (Cloridorme / Gaspé Peninsula, QC)
Appointed: 2014 (Quebec)
Law school: Laval University
Years on the bench*: 6

Justice Russell Brown
Born: 1965 (Vancouver, BC)
Appointed: 2015 (Alberta)
Law school: University of Victoria (master’s and
doctorate: University of Toronto)
Years on the bench*: 8

Justice Malcolm Rowe
Born: 1953 (St. John’s, NL)
Appointed: 2016 (Newfoundland and Labrador)
Law school: Osgoode Hall
Years on the bench*: 21

Justice Sheilah L. Martin
Born: 1957 (Montréal, QC)
Appointed: 2017 (Alberta)
Law school: McGill University (master’s: University of Alberta, doctorate: University of Toronto)
Years on the bench*: 15

Justice Nicholas Kasirer
Born: 1960 (Montréal, QC)
Appointed: 2019 (Quebec)
Law school: McGill University (master’s: Université Paris I (Panthéon-Sorbonne))
Years on the bench*: 11

* All court levels, as of 2020

Canada’s Highest Court: A Court for All Canadians

Chief Justice Wagner listening to a question from a journalist at his annual news conference

The Supreme Court of Canada is the final court of appeal for the whole country. It hears appeals from the Courts of Appeal of all provinces and territories, the Federal Court of Appeal, and the Court Martial Appeal Court of Canada. In rare cases, when there isn’t a right to appeal somewhere else, the Supreme Court may hear appeals from other courts.

The Supreme Court is independent and impartial. It hears cases that are particularly important to the public. It helps develop Canadian law and makes sure laws are applied clearly and fairly across the country.

The Supreme Court is the only bilingual and bijural (two legal systems) supreme court in the world. It hears and decides cases in English and French, and deals with cases from Canada’s two major legal traditions. Common law is based on English law and civil law is based on the French civil code and applies to most non-criminal matters in Quebec.

The Supreme Court and its judges take part in many activities outside the courtroom, both in Canada and around the world. In 2020, due to the global pandemic, many of these activities happened online. Some notable dates include:

Date	Event
April 8	145th anniversary of the Supreme Court of Canada
April 30	Publication of the Court’s second annual Year in Review
June 9 to 12	First fully online hearings
June 18	Chief Justice’s annual news conference
July 2	Launch of remote public tours of the Supreme Court building
September 23	The Chief Justice attended the Speech from the Throne

The Supreme Court of Canada is a member of a number of international court organizations such as:

• World Conference on Constitutional Justice
• Asia-Pacific Judicial Colloquium
• L’Association des cours constitutionnelles francophones (Association of Francophone Constitutional Courts)
• L’Association des hautes juridictions de cassation des pays ayant en partage l’usage du français (the Association of Supreme Courts of Cassation of French-Speaking Countries)
• International Association of Supreme Administrative Jurisdictions

Meeting with colleagues in courts around the world allows for the sharing and exchange of best practices, ideas and innovations. The Supreme Court and its judges are also keen to extend invitations to members of these and other organizations.

A Landmark Judgment:

Language Rights in Schools

The Canadian Charter of Rights and Freedoms is part of Canada’s Constitution. It sets out the rights and freedoms of all Canadians. Some of those Charter rights protect the use of Canada’s official languages, English and French.

Section 23 of the Charter is about the right to go to school in English or French, even when it’s not the main language of the province or territory. It says people whose first language is the minority language, or who went to primary school in that language, can send their kids to school in that language. But there have to be enough children in a community to justify it. Section 23 doesn’t say exactly how many children is enough for different levels of services. (For example, their own classrooms, their own schools, or their own school boards.) It also doesn’t say how good the education in those schools has to be.

In June of 2020, the Supreme Court issued its decision in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. This decision affirmed that children who study in English or French should get the same quality of education. The decision also said that eight B.C. communities should get French-language schools.

The majority of judges noted that school helps preserve the language and culture of official-language minorities. That’s why the right to go to school in the minority language is protected. The majority also said all children deserve the same opportunities. That means that minority and majority-language students should get the same quality and experience at school. Going to a small school shouldn’t mean students get a worse education.

This was one of two cases heard during the Supreme Court’s visit to Winnipeg, Manitoba in September 2019. It was the first time in history the Court sat outside of Ottawa.

People lined up hours in advance to attend this hearing

Justices Martin and Brown

Public view of the hearing in Winnipeg, MB

Justices Côté and Rowe