In the past few years the Supreme Court of Canada has been dividing in cases more often than it agrees, but Canada’s top judge says none of those disagreements stem from, or reflect, politically partisan considerations.
“Partisan politics never comes into play,” Supreme Court of Canada Chief Justice Richard Wagner assured several hundred Canadian Bar Association (CBA) members attending their virtual annual meeting Feb. 7.
Chief Justice of Canada Richard Wagner
The court “must be — and is — fully independent of the political branches of government. It remains impartial and free from undue influence,” Chief Justice Wagner said.
“It would be a mistake to believe that legal disagreements on the court signal partisan divisions,” he advised. “Those who think that healthy debate signals a partisan divide do not fully understand our court’s entrenched culture of collegiality. Collegiality is the strength and great distinction of our court.”
Nevertheless, the court’s recent divisions, and occasionally sharply worded jurisprudential debates, attracted the public spotlight last month when a Globe and Mail analysis suggested that on some foundational constitutional issues the top court has started to “split almost entirely by party of appointment — just like its U.S. counterpart.” Legal affairs reporter Sean Fine wrote that in the past two years, seven cases implicating the scope of Charter rights and the judicial role have divided the judges “largely by party of appointment” — with the views of Conservative-appointed members prevailing in five decisions.
Chief Justice Wagner dismissed any speculation about partisan motivations on his court as “an armchair sport best played in the United States.”
“Members of the Supreme Court have diverse legal opinions and lived experiences,” he acknowledged. “We are nine different people who may have differing opinions on the issues that come before us.”
But “that’s a good thing,” he suggested. “Indeed in Canada, we welcome open legal debates and value the exchange of ideas within the community of legal scholars and practitioners. It is a barometer of the strength and health of our democracy, precisely because it is not a partisan debate.”
Importantly, the judges’ disagreements don’t impede the court from doing its job of providing legal guidance to Canadians, he said. “And despite those differing opinions, the court’s decisions are always majority judgments. Those majority judgments are the law. And they reflect how it is evolving and developing.”
He called comparisons between the Canadian and other courts “futile” as it is the only bilingual and bijural apex court in the world.
It is also true, however, that the trend to greater division on the Supreme Court (although not the reasons therefore) is confirmed by the top court’s own published statistics. From 2018 to 2020 the nine judges disagreed with each other more than they agreed — for the first time since at least 1990. (By way of comparison, the Supreme Court’s average unanimity rate on the results of appeals from 2000 to 2017 was 71 per cent. The decline in unanimity began in 2016 — while Beverley McLachlin was still chief justice — emerging as six new judges were appointed from 2014 to 2019.)
Chief Justice Wagner took the opportunity during his address to urge the legal profession to keep pushing to make justice more accessible, and to make it more affordable for people who aren’t wealthy.
Citing the “No Turning Back” report of the CBA’s Task Force on Justice Issues Arising from COVID-19, he agreed “the task force is correct — there is no turning back.”
“We must continue and build on the measures, procedures and innovations implemented in response to the pandemic,” the chief justice said. “As the report says, it is not just about minimizing the disruption caused by COVID-19. It is also about applying those innovations purposefully and sustainably to ensure justice becomes accessible to everyone.”
CBA members endorsed those sentiments in two companion resolutions at their annual meeting, which commit the 36,000-member association to:
- urge all dispute resolution bodies to permanently implement remote proceedings — especially for procedural, uncontested, shorter and less complex matters — while maintaining in-person attendance where appropriate;
- work with justice system partners to establish a working group to explore how to effectively triage matters that better lend themselves to remote proceedings and explore which areas of law are potentially suited for online;
- urge appropriate stakeholders in the justice system to consider innovative approaches “to the access to justice crisis” to help low- and middle-income Canadians who lack meaningful access to civil legal services, and to permit regulatory innovations that have potential to improve accessibility, affordability and quality of civil legal services, while ensuring necessary and appropriate protections that best serve clients and the public.
Jérémy Boulanger-Bonnelly of the CBA’s Access to Justice Subcommittee told The Lawyer’s Daily implementing remote proceedings is doable right now.
“To be clear, the resolution does not call for in-person hearings to disappear,” he explained. “We expect that online hearings should remain in many simpler, shorter, procedural and uncontested matters, but it may also be extended to other cases, for example where no witnesses need to be heard.”
Boulanger-Bonnelly said it is important to leverage the benefits of online hearings to save resources both for litigants and for the justice system, while at the same time maintaining the quality of justice.
Importantly, the call for regulatory innovations can encompass a broad range of innovations which are currently either discouraged, or prohibited, by regulators across the country, he said.
Some law societies are already experimenting with new innovations through “sandboxes, he said. “But these sandboxes, in some cases, remain too restrictive, and some provinces simply lack those initiatives at the moment.”
“Canadians have a range of needs which do not always need the full service of lawyers to be resolved,” Boulanger-Bonnelly said. “For example, legal coaching initiatives are often difficult to establish, but they can benefit clients. Alternative business structures may also be an important tool in improving access to justice, as the Reaching Equal Justice report published by the CBA almost a decade ago already noted.”
The point, he said, “is to ensure that those initiatives are tailored to maintain the protection of the public, but we must do more to ensure that innovations and creativity are not stifled by regulations that are too restrictive.”
Photo of Chief Justice of Canada Richard Wagner by Roy Grogan
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