The Richard Wagner era at the Supreme Court of Canada is beginning with a promise: The court will do its best to make itself understood.
And not just to lawyers and law professors, the new chief justice says.
“We have to explain to the population who we are, what we do, why we do it and how we do it,” the 60-year-old Quebecker, who succeeded Beverley McLachlin in December, told 250 students in a packed lecture hall at the University of Western Ontario’s faculty of law in London, Ont., on Wednesday.
Transparency, he said, is a necessary adaptation in a world losing faith in democratic norms.
“When you see what’s going on outside our country, it’s a bit scary,” he said, referring – without specifying any countries – to a loss of respect for democratic institutions, minority rights and judicial independence.
He praised the state of affairs in Canada – but warned against complacency.
“I think we are very lucky in Canada to have strong institutions, compared to other countries where some basic principles are under attack.” But, he continued, Canadians should not take their democratic “assets” for granted. “I think we have to protect those assets. I think we have to work for it on a daily basis.”
Which is why this month the “headnote” – the legalistic summary that sits atop Supreme Court rulings – will be supplemented by an actual summary written for regular folks and posted on the court’s website and Facebook page. And more, still unspecified, changes are on the way, Chief Justice Wagner said.
“That’s the new reality,” he told the students. “You have to make sure there are clear decisions accessible in clear language.”
Part of the need for more transparency stems from the declining presence of traditional news media, he said. Twenty years ago, the court’s decisions were “received, understood and explained to the citizens by the traditional media. It’s not the case any more. There are very few media attached to the coverage of the Supreme Court and its decisions.” Instead, he added, the public receives much of its information from social media and the internet. (The court has had a small presence on Twitter since July, 2015, and has 20,000 followers.)
Chief Justice Wagner called on judges to come out of their institutions and address the public more directly than they have in the past.
“I think that those days are gone when people could hide themselves. I’m not saying that judges must be on a talk show every week to answer questions, but they have to take the opportunity to talk to the population directly.”
Transparency, he said, is an “essential ingredient” for maintaining the public’s faith in the legal system.
“Because when we lose that, people will settle their litigation on the street.”
The issue is not new for Chief Justice Wagner. At his nomination hearing before a parliamentary committee in 2012, he called for public hearings for all new federally appointed judges, including those who serve on provincial superior courts, the Federal Court and the Tax Court.
David Sterns, a Toronto lawyer and past president of the Ontario Bar Association, praised the idea of creating a plain-language summary.
“It’s a great idea. Anything that makes the law more open and accessible is a move in the right direction.”
Eugene Meehan, a former executive legal officer for the late chief justice Antonio Lamer, said finding the right balance between openness and monastic silence is tricky for judges.
“If judges take a position contrary to government (which they are often required to do in judgments),” he said in an e-mail, “then talk about it, might some consider that descending into the political arena?”
In today’s world, judges face even more dangers, added Mr. Meehan, now a partner in an Ottawa law firm specializing in the Supreme Court. “In a time where anything said publicly can be recorded and shared with millions in an instant, does encouraging judges to be more social on social media have its risks?”
Chief justice Lamer, he said, used to tell judges who were considering speaking out: “Advice from mother whale to baby whale – if you hadn’t gone to the surface and spouted, you wouldn’t have gotten harpooned.”
The Globe and Mail, February 1, 2018