Yves Faguy: You are listening to the Canadian Bar Association National magazine.

Hi. I’m your host, Yves Faguy. I’m the editor-in-chief of CBA National magazine. This episode of After the Pandemic is presented by Lawyers Financial. Get expert advice and quality insurance and investments with Lawyers Financial. And because they're not for profit, you get exceptional value. Get started at lawyersfinancial.ca.

Welcome to After the Pandemic where we discuss emerging issues in law in a world transformed. It is my privilege today to have as our guest the right honourable Richard Wagner, the chief justice of the Supreme Court of Canada. He has kindly agreed to an interview with CBA National to discuss the work of the Supreme Court during what can only be described as a very unusual period. Welcome to the program, Chief Justice Wagner.

Richard Wagner: Thank you very much, Mr Faguy. Nice to be here.

Yves Faguy: So tell us: do Supreme Court justices get cabin fever during pandemic lockdowns like the rest of us?

Richard Wagner: Oh we all, like the other citizens of this country, we try to manage and we try to since the month of March of 2020 we tried to adapt to this new crisis. And I can tell you a little bit more about what’s happening at the Supreme Court.

Essentially, as you may already know, the court closed the building – the building was closed since the month of March 2020. And the pandemic has fundamentally changed our society and the way we interact with each other. And so we had to adapt, and I must tell you that I was very much impressed with the way generally the judiciary reacted to this crisis.

I noticed that the judiciary turned around quickly. They used technology as soon as possible and as much as they could in order to release decisions, to allow access to justice, and to make sure that the most urgent matters would be covered. And so I must say I am very proud of what the judiciary did during the last year throughout the country, in each provinces.

And so in so far as here at the Supreme Court of Canada, of course, as I mentioned to you, we would close the building to the public, and we postponed all the cases for the month of March, April and May. And we held our first hearings in the month of June. End of June, and it was all remotely done. Everybody was on their computer. The attorneys were at home or at their office, and judges were in their offices, and it went very well – without any problems.

And then during the fall we had hearings but in presence. The attorneys were present in court; the judges were present, also in court. But the courtroom was rearranged. We installed plexiglass between the seats; we installed two rows of judges: one at the bottom and the other one up there, so that we would follow the guidelines of the health and safety. And so it went very well also.

But when the crisis increased again during the during wintertime, we continued to have hearings, lawyers, in video, remotely, and the judges in presence in court. So far so good – we don’t have any backlogs – but you have to realize that contrary to the trial division, the trial courts, of course, the appeal courts, we don’t hear witnesses. We don’t manage the evidence; we only hear counsel’s arguments. So it’s much easier to do remote hearings. The real challenges is really with the trial courts.

Yves Faguy: But what’s been most challenging for you as the presiding judge of the Supreme Court of Canada?

Richard Wagner: Well, I think it was to make sure that safety was covered for everybody. In other words, you know, we have more or less 250 employees: the staff at the court, the nine judges. And so I had to make sure on a daily basis that we would adopt the most recent guidelines in terms of safety. And we rearranged the court accordingly.

So that was my biggest concern and, with the help of my staff, of the court staff, we were able to do it. And I’m very happy to report today that there was not one single case of illness amongst all our staff and judges.

Yves Faguy: That’s great to hear. I’m wondering: does it complicate your life and that of your colleagues to deliberate over cases? Or is this done smoothly enough virtually?

Richard Wagner: It depends what you can describe as complicated. Because of course we had to adapt. In other words, during the month of June and the month of January and February, of course we – our deliberations were made, were done remotely. In other words, we were not in the same room, so on the computer we could discuss with the proper platform.

But the discussion, of course, is different than the one you will have in a single room. But it went very well and it is going very well. So, in terms of changes, of course it’s a bit more complicated because you have to go back to your office, you have to make sure the platform works, and that type of things. But it’s going very smoothly and efficiently. And one good point out of this terrible crisis is, for instance, for the application for leave to appeal, you know that we have more or less 400 to 600 applications per year. And before the pandemic, of course, we were receiving all the books to our respective offices and were making our decisions. Now it’s on computer.

So it is much more efficient, quicker, and that type of working will remain, even after the pandemic is over.

Yves Faguy: I’d like to ask you: the CBA taskforce report on justice issues arising from COVID-19 comes out in February 17th, and I know you have a role in that to play. What do you think are some of the most urgent issues that need to be addressed for us to come to grips with? Perhaps we could call them some of the shortcomings that we’ve seen in the justice system that have been highlighted by COVID.

Yeah. I talked about it a little bit earlier but I think the biggest challenge is to make sure that there are no more backlogs in the trial courts. The real challenge is there, and more specifically for the jury trials – in criminal matters. Because, by definition, to have 12 people in the same room to conduct a trial was quite a challenge. In the Province of Ontario all the jury trials were postponed. I know for a fact that in Quebec jury trials are going on but it’s much more complicated. So this aspect of the justice system is problematic, and we’ll have to address that as soon as possible.

The other thing is we discovered that, you know, technology could be very helpful but, in some instances, in some areas of the country, people don’t have internet, cannot use that technology. So we have to make sure that this technology be accessible to everybody in Canada. So that will be another challenge when we emerge from this pandemic.

So that would be, for me, the two major concerns.

Yves Faguy: I have one question about, you know, the legal community has actually picked up on this, and I’ve, you know, certainly had a few people talk to me about it, which is that a lot of people have noted that we have seen from the Supreme Court a lot of decisions from the bench – not necessarily in cases that were appealed as of right. I’m wondering: is there a reason for this? Does this have anything to do with managing things through the pandemic? Perhaps you could enlighten us.

Richard Wagner: Well first of all I’d like to mention that of course I cannot comment on specific cases with respect to the way deliberations were conducted, because they are privileged.

Yves Faguy: Right.

Richard Wagner: I can comment as follows. Very often judgment will be released from the bench in as-of-right cases. And as, you know, as-of-right cases are criminal cases where there’s a dissent from one judge at the Court of Appeal. And there are many reasons why a judgment can be released from the bench, or should be released from the bench. First of all, for the last couple of years we saw an increase in as-of-right appeal coming from different Court of Appeals in Canada. Second, we will give the attention and the resources necessary for each case, but we have to conclude that, you know, it’s not all the cases that deserve the same attention, the same level of review.

When there is no question of law, of national importance, when there’s no controversy on points of law, when it’s a simple question of error from one – reviewable error from one judge or two judges, that will militate for a judgment very often from the bench. In other words, it’s more a correctness analysis than the review of a specific point of law for the future.

So, you know, access to justice is very important. Very often we need to release the judgment from the bench because of the nature of the question of law. Many judges across the country are waiting to get the answer from the Supreme Court. And in those situations we have to make sure that judgment is released as soon as possible. Very often we will release the decision but reasons to follow.

Yves Faguy: Mm-hmm.

Richard Wagner: And in other matters, to take that, to take the case under advisement and right reason, would bring more confusion and delays. So the delays are very important but rest assured that insofar as we are concerned at the court, we will give all the attention needed for every case.

Advertisement: At Lawyers Financial, your satisfaction is our success. It’s not that money doesn’t matter. Financial. It’s right there in our name. But we’re not for profit, and that gives us the freedom to give you break-even pricing on insurance and investment solutions, and exclusive rates on home, auto, life and disability insurance, just to name a few. At Lawyers Financial we focus on you so you can focus on your family, your firm and your future, and that sounds like success by any measure.

Yves Faguy: I’d like to switch topics a little bit and discuss the issue of systemic and institutional racism, and I bring it up because it was another major issue that’s been building over the years. But that seems to have hit a bit of an inflection point in 2020 with the global protests shining a light on racial injustice. And I know it’s obviously something that is for our elected lawmakers to address and to tackle, or not to tackle, but some commentators have noted that over the last few years the Supreme Court of Canada has increasingly shown a willingness to focus on racialized perspectives when deciding cases.

I’m wondering, from your vantage point, is that an accurate assessment? And have you seen the court evolve in that direction in any way?

Richard Wagner: Well, that that’s a very important issue and, you know, I’ve said many times before that judges don’t live in ivory towers. So we are part of the society and we could not do our jobs well if we were not sensitive to what was happening in the world around us. So as judges I think we must, however, remain independent and impartial. And we speak through our decisions, through our judgments.

But in 2020 you saw people around the world that raised their voices against racial discrimination and racial violence and confronting injustice wherever it shows itself is a good and necessary thing to do. So in Canada we have Section 15 of our Charter of Rights and Freedoms that guarantees everyone equal protection and equal benefit under the law without any discrimination, and including discrimination based on race. And the Supreme Court has noted, like many others, that that guarantee has not always been fulfilled.

So, for instance, in 2019 there was a decision by name of Lee, and in that decision the court referred to and cited abundant research showing the pernicious effect of racial profiling. And the court noted that racialized communities have disproportionate levels of contact with police and generally with the justice system. So they are more likely to have their rights violated or to be injured or to be killed in interactions with police. So those are hard facts and truths.

And we also know that the indigenous communities have long suffered from stereotypes. Bias; discrimination. And, again, that was well documented by the Truth and Reconciliation Commission. So the Supreme Court took note of this in the case of, for instance, recently the case of Barton, where the use of dehumanizing stereotypes about indigenous women meant that the accused is presently having a second trial.

In the case of Ewert, which I wrote for the court, the court described how systemic discrimination against indigenous people, indigenous inmates, has led to worse outcomes for these offenders who are also less likely to be released early.

So, in all those cases, the Supreme Court released very strong decisions and we could see clearly our racial biases and discrimination deliver injustice. So I think that when we see it, when we can deal with it throughout our judgments, the Supreme Court will decide.

Yves Faguy: But it’s where the Supreme Court will decide. Presumably, I would think that the courts cannot achieve this alone.

Richard Wagner: Of course not and, you know, the court will decide when the case is brought before it. Many stakeholders of society are involved in this, for this problem. Of course, the elected officials are the first ones to deal with the matters, through legislation, if they can. And if only when the court are seized with specific cases that they will intervene. It’s not for us to legislate; it’s not for us to act as the elected officials.

Yves Faguy: So it has been an interesting year and I think it’s been an interesting year – it may be more of a footnote in the end, in your experience, but recent events have thrust you into the role of acting governor general. The appointment is temporary, obviously. I’m wondering if you could explain to our listeners how it came to be historically that the position of chief justice is also the deputy governor general. I don’t think everybody gets to enjoy the privilege, but tell us how it came about.

Richard Wagner: You’re absolutely right, and there are many people who don’t understand where it comes from, and why is it that the Chief Justice of Canada should act in the same position as the governor general. But I am, officially, I am the administrator of the Government of Canada, and I’m not the acting governor general.

So I was sworn as an administrator on January 23rd of this year. It was in a very brief and private ceremony presided by the clerk of the private council, and it was done here at the Supreme Court.

Now, according to what we call the letters patent constituting the office of the governor general, those letters patent were issued in 1947, and according to this document the Chief Justice of Canada would assume the powers and authorities of the governor general as Administrator of Canada when the office is vacant. So it’s not when the governor general cannot act for illness or because of unavailability, but because the office is vacant. That’s what’s happening right now: the office is vacant. And that’s why, according to the letters, the chief justice becomes the administrator.

So I will – the purpose of having the Chief Justice acting as administrator is to assume the continuity of the constitution, so that there’s some kind of stability in the government and nothing would fall between two chairs. And so that’s why when I’m acting as administrator I will sign, order in counsel, some documents, and but I’m always wearing my hat of administrator, which has nothing to do with my task as Chief Justice of Canada. So people have to understand that.

Yves Faguy: Thank you for the explanation. I think that’s quite helpful. I’d like to ask you, before we conclude the interview, a couple more questions. The Canadian legal community lost one of its most respected constitutional litigators last year: Joseph Arvay. And you noted his passing before one of your hearings, I believe – recent hearings – and you also noted his outstanding legacy. You mentioned that his advocacy skills were second to none, and I’m just wondering that, for the benefit of a new generation of lawyers and up-and-coming litigators, can you tell us what made him such a great litigator, in your view?

Richard Wagner: Yeah. Well I, you know, when he passed away, of course, I was very sad because he was one of the best. And, you know, he came before the Supreme Court many times. And I joined the court in 2012 and I had the occasion to hear his arguments very often. And, you know, I was a litigation lawyer myself for 25 years. I was in court almost every week. And so I knew a little bit about how to argue a case and how to act as a litigation lawyer, and he had these qualities, you know? He was always respectful. Whatever the circumstances. Always respectful of the court, of his colleagues, and he was very convincing.

And to be convincing as a litigation lawyer, you have to be convinced, and he adapted his clients’ case with integrity, but he was very, very convincing, and that’s why he was always prepared – well prepared. He could argue the case without referring to his notes, and that’s the sign of a good litigation lawyer. You have to control your case; you have to know your case. And of course at the level of the Supreme Court of Canada, if you don’t understand or if you don’t know your case, you will never know your case. Because usually you’ve been at the trial division, at the appeal division, and then the Supreme Court.

So he was respectful, he was well trained, he was well prepared, and that’s why I think he was one of the best.

Yves Faguy: Since we’re speaking about legacies, I’m wondering if you could spare a thought for your colleague, Justice Rosalie Abella, who will be retiring this year. What do you think her legacy will be, you know, for the legal profession but also for the court?

Richard Wagner: That’s interesting because that’s probably something that you will decide, potentially. Because, you know, Rosie and I, it’s funny because people don’t know about that but we started on the same month, I think. She was appointed in 2004 at the Supreme Court; I was appointed in 2004 the same month at Superior Court, in Quebec.

And, you know, she’s been a Supreme Court justice for 16 years; she’ll be retiring this summer. And I think that you could describe Rosalie Abella as a passionate jurist. That’s the word I would use. Because, again, you know, we’re talking about being convincing and convinced; she’s convincing and convinced. But she’s always passionate about the way she would approach cases, the way she would approach the reasons that she would write. So I think that that’s a quality that will be recognized in the future.

Yves Faguy: I have one last question, the final question that I want to ask you and it’s a bit of a surprise question. Everyone seems to have had their streaming or their reading recommendations for waiting out the pandemic. I imagine that you are a very busy man and that your colleagues are too, but you must have set aside some time for distractions and, if so, is there anything that stood out that you would like to recommend to our listeners?

Richard Wagner: Well, you’re right. We had to discover new ways during the pandemic. But, you know, for me it was a good opportunity to discover technology, believe it or not. And I’ve never had so many FaceTimes in my life with my grandchildren. You know, I have three grandchildren and unfortunately I could not see them in person but I could see them through the technology, and for me it was a kind of discovery, because I was not using it as much as I should, maybe.

And so I became quite an expert in talking to my grandchildren through the – what for me is a new technology.

Yves Faguy: Well, on that note we must unfortunately bring the interview to a close. I know you’re a very busy man. Thank you so much, Chief Justice Richard Wagner, for taking the time to speak with us today.

Richard Wagner: It was my pleasure. Thank you, sir.

Yves Faguy: I’ve been talking with the right honourable Richard Wagner, the Chief Justice of the Supreme Court of Canada. You can hear this podcast and others on our CBA channel, The Every Lawyer on Spotify, Apple Podcasts, Google Podcast, and Stitcher. Subscribe to receive notifications for new episodes, and to hear us in French listen to our Juriste branché podcast.

If you enjoyed this episode, please share it with your friends and colleagues. And if you have any comments, feedbacks and suggestions, please feel free to reach out to us on Twitter at CBAnatmag, and on Facebook. And check out our coverage of legal affairs at nationalmagazine.ca. And of course my big thanks to our terrific podcast editor Ann-Catherine Désulmé, and thank you all for listening to this month’s episode of After the Pandemic.

We’ll catch you next month.