Top judge touts court’s leadership role
Progressive Supreme Court can promote values in uncertain world, says Justice Wagner
OTTAWA— Chief Justice Richard Wagner said he sees the country’s top court as the most progressive in the world with a leadership role to play to promote democracy, the rule of law and “moral values” at home and abroad.
Wagner said the Supreme Court of Canada’s main job is to decide cases brought before it, and declined comment on contentious issues he could soon face, like pot legalization, pipelines or the limits on provincial environmental jurisdiction. But he slammed the high imprisonment rates of Indigenous people as “terrible” and “a serious problem,” and said the Supreme Court “has a role to play” in the national project of reconciliation with Indigenous people. He pointed to Ewert vs. the Correctional Service of Canada, a June 13 ruling he wrote in which the court denounced the discriminatory way the federal prison system assessed Indigenous inmates and the likelihood they would reoffend.
“We are in a process of reconciliation,” Wagner said in a wide-ranging news conference, his first since being named in December to replace former chief justice Beverley McLachlin. “It is going to be a long process. It has to be done. It has to be done the right way, and it involves many stakeholders,” he said, listing the government, various services, and the court. “We are committed to do it within our own jurisdiction.”
In contrast to his predecessor’s unwillingness to be drawn into discussions that could touch on political subjects, Wagner’s decision to engage with reporters for 45 minutes on a range of questions signalled he is prepared to be a bold, more open and more assertive chief justice.
Wagner said the high court and its top judge should provide leadership through its rulings, “presence” and judicial speeches at a time when fundamental democratic and “moral values” are being undermined in the world because there are “people outside the country that are looking to us to get our support because they need our support.”
Without naming any leader or country, or specifying if he was referring to dictatorships or wobbly democracies, Wagner said: “Right now we see outside Canada that some of our basic values, fundamental values and moral values, are seriously attacked by other countries or leaders of other countries, who pretend to be democratic,” he said in English. (In French, Wagner’s first language, prétend means “claim.”)
“And in those circumstances, I believe that Canada … Canadian institutions have a role to play, not only inside Canada, but also outside the country.
“We are not a superpower, economically speaking. We’re not a superpower in military terms. But we are a power in terms of the rule of law, in terms of the moral values.”
In a series of revealing answers to questions about his approach to judicial law-making, judicial misconduct, and the need to be accountable to the public, Wagner said he has pressed the federal Liberal government to move more quickly on reforms to speed up judicial discipline. He called the government’s failure to act on a February recommendation by the Canadian Judicial Council to fire a Quebec judge in the Abitibi region — which now has only one sitting judge — “not satisfactory.”
Whereas McLachlin is widely seen as a chief justice who sought and valued consensus judgments, Wagner said he believes robust dissent on a court in a democracy is “more trans- parent,” and “as long as the dissent is made and is released in order to explain, with civility, a legal position, I think it’s a good thing.”
“Canadian institutions have a role to play … we are a power in terms of the rule of law … and moral values.” RICHARD WAGNER CHIEF JUSTICE
He underlined his belief that the Canadian constitution is “a living tree” and its interpretation not limited to the original meaning of its text. Rather, Wagner said, it must be interpreted in the context of societal, technological and other changes, while incorporating factors such as unwritten legal or constitutional principles — a matter of debate among legal scholars.
Wagner pointed to the high court’s decision in the assisted suicide case, known as Carter, which overturned its own precedent set 20 years earlier in the case of Sue Rodriguez, a patient with ALS.
It forced the federal government to pass a new law to decriminalize medical assistance for certain dying patients. Although that ruling was the result of some different facts, Wagner said, “it also depended on the evolution of society, the evolution of technology, evolution of medicine, evolution equally of the moral values that link most Canadians.”
Asked if he agreed with Vancouver defence lawyer Joe Arvay’s characterization of the Supreme Court of Canada as “the most progressive in the world,” due to rulings like Carter (which Arvay litigated and won), Wagner said: “I would say so, yeah, and I must say I’m very proud of that.”
Wagner said the Canadian high court is “unique” as a bilingual institution, that encompasses Canada’s civil and common law jurisdictions, and has managed to “somehow” carve out a constitutional jurisprudence with its ability to interpret text and evolve with the times, and so has become a beacon for other international courts on health issues, the environment, democracy, rule of law and respect for institutions.
“I think that Canada and the courts will play a (very) important role on the international scene.”
Wagner vowed to bring more openness and transparency to the workings of the court via news conferences, which he promised he would conduct annually, via simplified plainlanguage summaries of court rulings, more public outreach through traditional and social media, and by taking the Supreme Court of Canada on the road.
The high court’s bench will travel in 2019 to Winnipeg to meet with other appeal court judges from across the country, but Wagner would like to see the court hold hearings outside Ottawa.