by Richard Wagner and David Collins
Judicature International (2024) | An online-only publication
On February 5, 2018, Richard Wagner, then the newly appointed Chief Justice of Canada, delivered a welcome ceremony speech to outline the current state and future of Canada’s judiciary. He raised several issues that he hoped to address in his role as Canada’s highest jurist, among them disinformation and a decline in the public’s knowledge of the courts. His speech hinged on a central question: What can be done to meet these challenges?
“For me, the answer is simple: our job,” he said. “But we cannot do our job the same way we always have. Society has changed, and so must we. We must be flexible, adaptable, open-minded.”
In July 2024, David Collins, Acting Judge of the New Zealand Court of Appeal and chair of the Judicature International editorial board, spoke with Chief Justice Wagner about how he and his colleagues have worked over the last six years to shepherd Canada’s judiciary into a new era.
The following transcript of their conversation has been edited for length and clarity.
Justice David Collins: Thank you so much for making time available for this interview, Chief Justice. We think that this is quite an exciting opportunity for readers to get a better understanding of judicial leadership around the world. Can I start by asking what you see as being the biggest challenges to the rule of law in Canada today?
Chief Justice Richard Wagner: Well, in Canada — if we compare ourselves with other societies and other courts in the world — I think we could say that we’re doing very well. I think that the courts in Canada are seen to be impartial, independent, and are well-regarded, generally speaking, by the stakeholders. Canada, as you know, is not the superpower in terms of military or economy, but I think that it is a superpower in terms of democracy, judicial independence, and the rule of law. We have our challenges, and we’ll talk about them, I’m sure, but generally speaking, our judicial system contributes well to our democracy.
If you’re asking the question, “What is the biggest challenge for the courts?”, I would say that it’s probably the same as in many, many countries: It’s the costs and delays for people to have access to the court. For the last 50 years, the justice system has been somewhat overlooked – there were not enough investments, and the courts were underfunded. Governments, for the most part, invested in health and education, which is great, but the justice system was always seen to be self-sufficient. A lack of investment for so many years created additional problems for the justice system in terms of delays, in terms of costs, in terms of the lack of enough judges and of courthouses. There were also not enough investments in technology to facilitate access to justice. I think it’s the same challenge in other countries in the world where the rule of law governs, and it’s a lack of investment that has created the high cost of going to court.
Collins: What do you see the biggest challenge facing the independence of the judiciary in Canada?
Wagner: As I mentioned, I think judicial independence is robust in Canada. The main stakeholders like governments and the media recognize how judicial independence is fundamental to democracy. But we should not take that for granted.
What I’ve realized over the last couple of years, since I became Chief Justice, is that misinformation and disinformation have a very negative impact on the general public. We have to be mindful of that. I think that’s a big risk, and we see that there are so many negative consequences in countries very close to ours where because of misinformation and disinformation, people cannot distinguish reality from fiction. It is a very important problem to address, together with AI, because artificial intelligence also can produce fiction that can add to the problems of misinformation.
I say this because it’s important that people keep their faith and confidence in our courts, and one way to do that is to make sure that people understand how the courts work, who are the judges, what they are doing, and how they are doing it. Years ago, judges essentially were releasing their judgments, and speaking through their judgments was enough. Not anymore. This is because the environment has changed. In the social media age, I think that judges have a certain responsibility, and chief justices in particular, to make sure that people understand how the courts are working. I always say, it’s very difficult for people to appreciate something if they don’t know about it. People don’t have enough information about the courts and how they work, or about the decisions that we release. It’s important that judges keep the public informed when they can.
Collins: How do you go about doing that in a structured way in Canada? Do you have educational programs for members of the public? What sort of things have you initiated to try and address these issues?
Wagner: I think that education is important, because we know that the main source of bias and prejudice is ignorance. The more information you give to people, usually the less prejudice or biases they will have.
When I became chief in late 2017, I decided together with my colleagues to put in place some initiatives to facilitate the public’s knowledge. For instance, way back in 2018, we set up what we call the “cases in brief.” The case in brief web page provides summaries of each decision. These are decisions that could take a hundred pages. But here, on one page, we summarize the meaning of the decision in accessible language. We try to summarize what the decision means for you, the citizen, your family, friends, and so forth. It’s not easy. It’s easier to write long and very difficult to write short, as you know. It was a great success, and we learned that it wasn’t just members of public accessing our cases in brief, but also the media, politicians, law professors, deans, and also judges at the lower courts. It’s a very good tool to allow people to understand what a decision means.
I also give my press conference once a year. I meet the press, and I explain what the Court has been doing for the last year, what are the challenges for the future, and so on. I think that people like it.
We have what we call the “Year in Review,” a brochure which can be found also on our website, which gives an overview of what we’ve done for the last year. It summarizes the main decisions we released, outreach and engagement initiatives, and has information on the staff and the way the court is working, and so on.
Lastly, I convinced my colleagues to sit as a court outside of Ottawa, which is where the Supreme Court of Canada has been located for almost 150 years. . In 2019, we sat in Winnipeg, which is right in the middle of the country, and then in Quebec City in 2022. In each instance, we stayed there for a week and heard two cases. We met with the law students at the university, we met with the general public at the museum, and we met with people from the Indigenous community. It was a great, great success. It allowed people who would not travel to Ottawa to attend a hearing to know how it’s done. That’s one more step taken to make sure that people understand what we’re doing.
Collins: Do you televise your proceedings in the Supreme Court?
Wagner: Yes, it’s been like that since 1987.
Collins: Right, and is there much uptake? I presume it depends on what case is being argued, but is it a popular thing to observe?
Wagner: Of course, we would need to survey that, but our information is that it is well-watched not only by the media but also by the general public. I think it’s part of the solution, and it was part of the measures that we have taken to make sure that people have access to the court. We have in Canada, like you have in New Zealand, the open court principle, which means we have to ensure that people have access to what’s going on in the courthouse. Televising our proceedings is one way to provide that.
Collins: Right. Is there a civics education program in high schools and in elementary schools in Canada, which would help young citizens to understand the court system?
Wagner: Well, that’s a very good question because I’ve been advocating for years now that we should have such a course in high schools. Unfortunately, this depends on the provinces, since education falls under the jurisdiction of the provinces in Canada. So, there are some provinces that have civics education and training at the high school level, but others don’t. I think it should be mandatory for young people to have access to this information about how the courts are working, their rights, and how the government works. We could prevent many problems by doing that.
On both occasions when we sat outside of Ottawa, all nine judges went into nine different high schools to answer students’ questions. It was very interesting because they had very good questions – sometimes naive, but often very intelligent questions. I will continue to try to advocate for those types of civics courses in high schools!
Collins: You’ve spoken often about the global problems that judiciaries are facing, at least from a Western perspective, such as challenges of maintaining judicial independence. Do you see much merit in international cooperation, particularly at the senior leadership level of judges, to share ideas and gain a better understanding of what each individual country is doing, so that we can all learn from each other?
Wagner: More than ever, I would say. I always like those exchanges. I think that there is no supreme court in the world that has the monopoly of wisdom or knowledge, and it’s even more accurate now with social media. I truly believe that every court has an interest in getting additional information, exchanging ideas, and talking about the best practices in one country compared to the other. We do it on a regular basis.
The Supreme Court of Canada, I believe, is the only supreme court in the world that is bilingual and bi-jural. We work in both legal systems — common law and civil law — on a daily basis, in both official languages, English and French. That’s why we share with other courts our ways of looking at challenges, so we can also learn about their best practices and their ways of addressing the challenges that we face.
As we know, the Supreme Court of Canada is a member of various organizations, such as the Asia Pacific Colloquium with New Zealand, Australia, Singapore, and Hong Kong. We meet every two to three years. We were in New Zealand last year, and next year we’ll meet in Australia. The Court is also a member of the Association des Cours Constitutionelles Francophones. I was president for three years from 2019 to 2022. I think that more and more we need to meet amongst judges, not only chief justices, but among judges in general, because we live through the same challenges and we can learn from each other.
Collins: What do you think that judges in Canada could do differently to improve the public perception of the judiciary in Canada, in addition to what you’re doing?
Wagner: It’s a work in progress, and there’s no quick fix. We are always looking for creative ways to educate the public and improve access to information.
For instance, last year we set up our first online portal at the Supreme Court to facilitate the filing of any documents, exchanges of letters, and so on and so forth. This portal serves not only lawyers but also self-represented litigants. In Canada, at the Supreme Court level, about 20-25 percent of all our applications for leave to appeal are filed by self-represented litigants — and we get between 400 and 600 leave applications every year.
We decided years ago that instead of saying, “Your application is not in line with our rules of practice,” and so on, that we would assist self-represented litigants and facilitate their access to justice. That’s one way to improve the confidence and trust in the courts, but there are many ways.
One of my first actions when I became chief was to enter into an agreement with the government of Canada – the Justice Department – to strengthen the independence of the Supreme Court. Because of our budget and because of the appointments of the civil servants, I wanted to make sure that the Supreme Court, the Chief Justice, would have the final word, and that the Justice Department would not intervene in the appointments of senior officials or the approval of the budgets. That’s one way to strengthen judicial independence.
Judicial independence is for the people, which many people don’t understand. What does that mean, judicial independence? It means that when going before court, whether the first instance or appeal courts, citizens will know that the judge or judges will hear the case in an impartial and independent way. That’s judicial independence, and that’s what I’ve tried to explain in Canada as much as possible.
We’ve done the same thing for the training of judges. It is important that people know that judges are well-trained on an ongoing basis. We have what we call the National Judicial Institute in Canada, which I chair, which provides training to judges throughout the country. We also entered into an agreement with the Justice Department to clarify that judges will develop the training programs for judges. In other words, governments will not tell judges what to think or what to learn, only judges will. So that’s another form of judicial independence, which is for the benefit of the citizens. But they have to know about it.
Collins: Let’s go back to a point you made earlier about how you assist self-represented citizens who want to come before your Court. Could you expand on that and explain how that works in practice? If a self-represented citizen shows up at the front door of the Supreme Court and says, “I want to appeal a decision of such-and-such court,” how do you go about assisting that person in a practical sense? Do you appoint a counsel to assist them? Or do you have court officers who are designated to try and move them through the system as painlessly as possible?
Wagner: As I mentioned, we have every year between 400 and 600 leave applications filed before the court. We only take between 60 and 80 of those applications, because we’re not an error correction court. We have to decide on cases considered to be of public importance, where there’s contradictory jurisprudence amongst the court of appeals, a new legal issue, and so on and so forth. We have to choose our cases. I should note that there are also some instances where leave is not required as parties have an automatic right of appeal, and some instances in which the Court will hear references, which are requests from a government for an advisory legal opinion.
Once an application for leave to appeal is filed, it goes to the registry, and there’s a court officer there who will decide whether the application is complete and respects the Court’s rules and regulations. Very often, applications from people who are representing themselves, being non-lawyers, will not comply with those regulations. So that court officer will talk to those people. It is true that it takes a lot of our officers’ time just to deal with those applications. They could talk six, seven, eight times to make sure that the people understand how the system works. So that’s the way we accommodate those people to make sure that they will be heard. Now, you have to understand that very few of those applications are granted by the Court. Very often those people don’t understand that it’s only in exceptional cases where the Supreme Court will intervene. But it does happen every now and then that the Court will hear a case brought by a self-represented person.
Collins: So, they have to understand why, and that really does facilitate access to justice. Putting in the time and effort at the beginning can save a lot of problems down the track.
Wagner: Yeah, exactly.
Collins: If leave were granted, or it was recognized that this person has stumbled upon a significant constitutional issue, would you appoint a lawyer to assist the court or to assist them so that the argument is properly presented before your court?
Wagner: That’s a very good question, because it has happened before. We have two options. Of course, the person himself or herself can act before the court. It has happened before that the person knew his file and did a very good job — maybe a better job than if he were represented by an attorney. It has also happened on some occasions that we will appoint amicus curiae to help these people argue their case. But both scenarios are rare, as I mentioned.
Collins: Who have you looked to for your inspiration as a judicial leader?
Wagner: Well, it’s interesting because I was always intrigued, interested by what’s going on outside of Ottawa and outside in the world and in other courts. I am always curious about how other courts are responding to similar problems we are facing. I get a lot of my inspiration from other countries. That’s why, since I became chief, we have had many, many international exchanges with other courts. As a lawyer before who practiced law for 25 years, I was a member of many international organizations where I learned about foreign practices in other countries. This helped me in my own practice. It often provides a new light to the same problem. It doesn’t hurt. It could only help, I think, and I kept the same way of looking at things when I became a judge.
I get a lot of inspiration from my foreign counterparts, but on a personal level, of course, my first inspiration came from my father, who was a lawyer — he was a judge, a member of Parliament, a member of ofthe Quebec National Assembly, a law professor, a minister of justice, an attorney general, and a senator, and he died at 54 years old. He was very young, but he had accomplished so much in his career, and he really dedicated his life to public service. When I looked at his career, for me, he is a true model of public service, and he is an important source of inspiration.
Collins: Thank you for sharing that. Finally, you’ve almost completed your sixth year as chief justice. What sort of legacy would you like to be remembered for?
Wagner: Time flies, doesn’t it! When I leave the Court, I hope that the Canadian public will know the Court better, have a greater understanding of how the court system works. I also hope that I will have been able to provide more transparency, and that the citizens of this country have increased trust and confidence in the court system, in particular in the Supreme Court of Canada. That is my hope.
Collins: I’m sure that that will be a well-earned legacy. Thank you very much.
