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Chief Justice Wagner improves public communication, brings new ideas, change to top court, CJC and NJI

Thursday, February 07, 2019 @ 9:51 AM | By Cristin Schmitz

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Richard Wagner, Canada’s reform-minded top judge, has already overseen changes at the three major legal institutions he leads — the Supreme Court of Canada, the Canadian Judicial Council (CJC), and the National Judicial Institute (NJI) — and there are more changes to come, he advises in a wide-ranging exclusive interview.

Welcoming The Lawyer’s Daily into the comfortable wood-panelled reading room used by the Supreme Court’s nine members, the dynamic 61-year-old former Montreal commercial litigator talked about diverse issues of interest to lawyers, including some behind-the-scenes developments at the top court since he was appointed its leader Dec. 18, 2017; reforms to aid transparency and efficiency at the CJC and NJI; and his view that, in light of court delays and backlogs, it would be “very good” if law societies moved to require lawyers to do some pro bono work — as he predicts more and more legal regulators eventually will.

The new chief justice’s public endorsement of an idea that generates lots of heat within the legal community (and which is sure to spark further discussion) is but one example of his willingness to speak openly and shake things up for the better, as well as his determination not to be part of the “culture of complacency” condemned by his court in its landmark ruling on unreasonable court delays, R. v. Jordan 2016 SCC 27.

Indeed, in his first year at the justice system’s pinnacle, the chief justice oversaw improvements at the Supreme Court, as well as at the NJI, which he chairs, and which revamped its governance model and got new management six months ago — changes that the chief justice believes will assist the influential body which successfully trains the nation’s judges to pursue its mission in an efficient and transparent manner.

The chief justice disclosed that he will also propose to the other 38 chief justices on the CJC, when they next meet in April, that they initiate a major review of their organization.

“Everything’s on the table,” he said of the powerful judicial disciplinary body he chairs, which in recent years has drawn fire from both the public and the profession.

Richard Wagner

SCC Chief Justice Richard Wagner told The Lawyer’s Daily that in light of court delays and backlogs, it would be ‘very good’ if law societies required some pro bono work from lawyers.

“I would like to re-evaluate and look at the organization and the way it works,” he explained. He said he will propose that outside consultants conduct a comprehensive review, including the council’s mission and mandate, its functioning, the types of committees it has,  and how directions are given internally.

“Everything should be looked at,” he suggested. “The idea is to update the management, update the way we work, be open to new ways of making the body more transparent and efficient.”

The chief justice stressed that the council is made up of “good strong people” and is already “very strong right now.” But he pointed out its last major overhaul dates back many years. “The thing is, can we improve it?” he said. “I think we can.”

An obvious area for reform is the persistent lack of transparency at the judicial policy-making body, which also oversees the education of the nation’s judges. For example, the council has for years refused to publicly disclose what its 39 members discuss and decide at their twice-annual meetings.

That closed-door approach by the country’s largest judicial council — and the only one not to include a member of the public in its ranks — appears to be at odds with its new chair’s commitment to openness and transparency.
“I’m working in the same spirit in every organization that I’m involved in” which is to “better communicate with the citizens,” Chief Justice Wagner advised. “Why? To make sure that they keep faith in our system — I truly believe in that,” he explained. “I’m very passionate about it because I know it can make a difference in terms of the level of democracy, and the type of democracy that we live.”

The chief justice said Canadian judges are vulnerable to the types of populist or other political attacks that have been directed at U.S. judges.

“The worse mistake we could make is to believe that we’re immune,” he emphasized. “We have a strong judiciary. We have strong institutions in Canada. … But we should not take that for granted. We have to continue working for that.”

He said his priority, as chief justice of Canada, is “to make sure that justice is well delivered to Canadians. And to make sure that it happens, I think that we have to be transparent, and we need to communicate with the citizens more than before because of the change in the environment.”

To that end, Chief Justice Wagner said the CJC will continue to ask the federal government for legislative reforms to speed up the glacial judicial discipline process — for the benefit of both the public and judges — a matter he will raise again when he meets with the new Justice minister, David Lametti.

“I think that reforms are needed to make sure that people keep their faith in the justice system,” he explained. “Generally speaking … I think that [the discipline process] is too long; it’s too costly; and it’s not really transparent.”

Transparency at the Supreme Court is fully supported by all its judges, the chief justice said. As a result, the top court has been, and will be, rolling out initiatives to improve its public communications, and thus enhance access to justice, including: publishing the court’s first annual report in February or March; posting the widely applauded “Case in Brief” plain-language summaries of the court’s judgments, which began last year; and taking the nine judges to hear a case “on circuit” (in a fashion)  in September, when they judges go to Winnipeg for their retreat and to meet the local bench and bar.

“I think it would be one good thing for us to offer to people who do not have a chance to come to Ottawa to the Supreme Court to look at what we do, how we do it, and why we do it at the same time,” the chief justice explained.

Richard Wagner with Cristin

Chief Justice of Canada Richard Wagner tells The Lawyer’s Daily that more open communication by the judiciary supports public confidence in the justice system, which supports democracy.

For his own part, the chief justice also makes himself available to interact with the public and the media, for example, participating this week in a question-and-answer session for parliamentarians and Parliament Hill staffers and, after he was appointed chief justice, accepting an invitation to a press conference with Hill reporters.

Asked whether he will be transparent about his own foreign trips on public business, he told The Lawyer’s Daily he doesn’t object to telling reporters the destination and purposes of those trips abroad (which his predecessor as chief justice declined to do). “I have no problem with that,” he remarked.

The Supreme Court has also made internal changes since Chief Justice Wagner assumed its leadership, including striking a committee to update the court’s internal regulations, and to accommodate the filing by e-mail of originating and supporting documents that the court began to allow Jan. 15.

As well, at the judges’ request, the chief justice now assigns who writes the court’s unanimous or majority reasons after each two-week period of hearings. This resumes the long-standing practice before the court experimented in 2017 with a new system whereby each judge had his or her turn to choose to write (which proved unpopular).

“People are happy, very happy,” the chief justice said of the current practice, whereby he assigns judgments based on the nature of the appeal, the interests of the judges, their respective workloads and other established criteria.

At the chief justice’s initiative, the court is also reconferencing more frequently after the initial case conference. “It was exceptional before,” he advised.

Of note to appellate litigators, since Chief Justice Wagner assumed the court’s reins, the judges are also routinely meeting for discussion in “pre-conferences” — i.e. at 9 a.m. — one half-hour before the hearing — a practice common in provincial courts of appeal.

Chief Justice Wagner said the judges use that time to discuss, for example, what they see as the main issues raised by the case, as well what kinds of questions should be put to counsel.

His colleagues “love the idea,” he said.

The upshot has been more focused and efficient hearings, greater advance knowledge of the issues and more concentration at the hearing on the most important questions. “Also it added a more collegial aspect to it, so that we are not nine members in different chambers,” he explained. “We’re a group and work together. And people like that. We feel more like a group now.”

Vis-a-vis his colleagues, the chief justice says his main obligation “is to make sure that we work together, that we’re happy to work together.”

“We have a good bench. I love my colleagues, I want to keep them happy, and [to ensure] that we are proud of our work — so communication again is very important.”

In his view,  “collegiality is to … be comfortable and to be transparent” and yet “not necessarily to be of the same opinion.”

Indeed, dissents are “normal,” the more so, he said, given the increasingly complex legal issues the court faces.

In fact the judges were more divided in 2018 than the court has been in at least a  decade — splitting in 48 per cent of the appeals in 2018, according to court statistics.

“I’m not concerned about dissent — as long as it’s done the right way,” the chief justice said, alluding to the importance of judges avoiding personalized attacks and invective.

“I think that all my colleagues agree that if they need to, they will” dissent, he said.  “But we’re using a very professional wording, and we don’t want useless aggressive wording. … So that’s part of collegiality, and you will see that in our decisions. Everybody agrees with that.”

In terms of the types of cases on the court’s docket, the chief justice anticipates that the judges will continue to face a mix of criminal, civil, constitutional and Aboriginal law cases, as well as possibly more environmental law cases given “the nature of the evolution of society.”

He didn’t identify specific types of cases the court would particularly like to hear. “If they raise questions of national importance, of public interest … they will be heard.”

The chief justice acknowledged, however, that the court departed from its usual practice of granting leave to appeal without reasons when it agreed to hear a blockbuster administrative law trilogy — which was argued over three days last December and is currently under reserve.

Lawyers were surprised (and delighted) when the chief justice expressly said the court wanted to revisit the framework for standard of review and invited interventions in the appeals.

“We don’t know yet what will be the end result of that,” he laughed. “I said to myself it’s been years now that the court was seen to go in various directions on standard of review and that type of legal issue, and I said to my colleagues, ‘Maybe we should try to resolve this thing. It’s been 10 years since the last time we looked at it — so we have to find the proper cases to look really at it.’ ”

“And everybody was very enthusiastic,” he recalled. “I must say it was a very nice collegial work, and hopefully that will be translated in the decision. … If we can settle that — it will never be settled 100 per cent — but if we could put some guidelines on those issues [raised by the cases], that would be a nice thing to do.”

The Supreme Court’s most recent statistics reveal that while applications from litigants seeking leave to appeal have held fairly steady over the past decade (there were 507 leave applications in 2018), the number of cases granted leave by the court continues a downward trend — to a low of 45 appeals heard by leave in 2018.

By contrast, the court is hearing a growing number of as-of-right criminal appeals (based on a dissent in the court below). In 2018 the court sat on 21 as-of-right appeals, and decided 20 from the bench — mostly by five-judge panels who give oral, rather than written, reasons.

The situation has produced complaints from the bar that the court does not agree to hear enough cases, and that the judges should be writing reasons more often in as-of-right appeals.

The chief justice does not seem persuaded. “Should we hear more cases? It’s a hard thing to answer because we don’t have quotas,” the chief justice commented.

“We look at a file and [ask]: ‘Is that something which is relevant, which is of national importance, which is of national interest? Is that something where there is a controversy in the lower courts of Canada? Is there a legal issue that deserves our attention?’ ” he advised. “It’s impossible to say: ‘We’ll hear 80 cases this year.’ We don’t know. That will depend on the nature of cases.”

It  remains true, however, that for the past two years the court sat on comparatively fewer appeals (66 in each of 2017 and 2018). “You could find a couple of years ago, it was higher,” the chief justice acknowledged. “Last year it was lower. My feeling is that it will get higher also.”

(Given the court’s apparently lighter workload, The Lawyer’s Daily asked why each judge now hires four law clerks, rather than three. The depth of the judges’  workload is not necessarily captured in the number of decisions they issue in a given year, the court answered in writing. “We have known for some time that the issues we are being confronted with are much more complex than they once were. The fact that the judges needed more support was a long-standing concern. We added an additional clerk to each chamber in 2017 on a trial basis, and so far it has helped.”)

The chief justice said the court gives the rising number of (mostly criminal) as-of-right appeals all the attention required by each case. While he usually assigns a five-judge panel because such cases often don’t involve legal issues of public importance, when they do, a full bench will be assigned, the chief justice noted, pointing out that he has assigned nine judges to some as-of-right appeals being heard in February and March.

“We give reasons in every case,” he emphasized. “Sometimes it will be the same reasons given by the Court of Appeal [below] because we find that it’s complete — so there is no use to reinvent the wheel. … I think that’s important for people to know and understand.”

Asked whether the court would like to get full control over its docket — which some of its judges pushed for in the 1990s — the chief justice responded that it’s not up to the Supreme Court to decide that as-of-right appeals should be abolished.

“It’s a very sensitive issue. … It deals with criminal law, so you are dealing with liberty,” he explained. “I think that it would be up to the bar, and law societies, and government to take the initiatives. And I think we are willing to go ahead with whatever cases are presented to us — as long as people accept that we will not sit seven [judges] or nine in every one of those cases.”

The chief justice, who dissented in Jordan, the court’s far-reaching ruling on the right to a speedy trial, said he believes that decision has overall “provided some good results” on the ground in the intervening two years.

Jordan was “a big alarm,” waking up governments which had long neglected to properly resource the justice system, he elaborated. “They introduced some legislation; they put more money in the system; they appointed more judges, and they created a consultation table with judges and the law societies. ... That was very good because things were improved, and efforts were made to help judges do their jobs.”

He went on to suggest it will take a couple of years more to see to what extent Jordan, and the efforts of governments and the judiciary, will make a positive difference in speeding up the court process and reducing backlogs.

Law societies also have a significant role to play in that regard, “because lawyers realize that they have to do something also, pro bono work, for instance,” he suggested. “Now you will see more and more law societies who will require that part of being a lawyer is also giving some pro bono work, and that’s very good.”

(Although lawyers are not required to do pro bono work by Canadian legal regulators, such a move has been advocated by prominent legal academics, including ex-governor general David Johnston. Mandatory pro bono has also been implemented in various forms south of the border, for example, in New York state where at least 50 hours of law-related pro bono work is required in order to join that bar.)

Asked his view on a proposal under discussion in Quebec to create specialized tribunals with specially trained judges, and Crowns, to try sexual assault charges, the chief justice replied such an initiative would be up to the legislators. “The only thing I can say is that judges at this time are willing and ready to do a very professional job” in presiding over such prosecutions.

He pointed out that the NJI has long provided “excellent” training for federal and provincial judges on how to properly handle sexual assault cases, including social context training. “I’m very proud of that,” he said. “Judges are well-equipped to do the job. … I can say that we have very strong and competent judges throughout the country, who are willing to do their best, and understand the very delicate and sensitive situation in which a victim, for instance, is placed in those types of cases.”

As for the infrequent, but high-profile, exceptions (such as former judge Robin Camp, who resigned from the bench after the CJC recommended his removal for mistreating a sexual assault complainant at trial), “one is too many,” the chief justice declared. “It should not happen, so let’s try to prevent that!”

In that regard, no one is more motivated — or better placed — to improve how justice is delivered to Canadians, than Chief Justice Wagner, who now leads three of the judicial branch’s  most important institutions — the Supreme Court, the CJC and the NJI.

He said he cherishes the opportunities and challenges that accompany  his responsibilities as chief justice of Canada. “I love it — every minute of it,” he confessed. “I’m very privileged to do what I do, and I want to make sure to do the right thing — so I’m very, very happy.”

Photos of Chief Justice Richard Wagner by Roy Grogan