Opening statement on the occasion of the Chief Justice of Canada’s annual press conference
Good afternoon. Thank you for joining me for my third annual press conference. When I became Chief Justice two and a half years ago, I committed to holding this annual event in order to provide an update on the work of the Court and to answer your questions. Rest assured that I am delighted to be able to do so, while we are facing this global pandemic.
Things are very different today than when we last met a year ago. The pandemic has fundamentally changed our society and the way we interact with each other. Some of that might be permanent. It has forced courts to look at different ways of working and accelerate steps toward modernization that were long overdue. Courts have been prioritizing the most urgent cases and using electronic and remote methods to hear cases and continue to deliver justice. But even with all hands on deck, with court staff and judges working all-out across the country, the consequences will be lasting.
At the Supreme Court, like many courts, we have made a number of practical changes. We moved to video-conference hearings for the cases we heard last week. While we have had the capacity for counsel to appear by video-conference for 35 years, last week was the first time ever that we had all participants, including the judges, online. We even allowed members of the public to register as virtual “observers,” although as always people could simply watch the hearing live on our website. All of this has been an adjustment, but one made easier thanks to the hard work of our staff and the collaboration of parties and counsel across the country. From the bench, the process of hearing from and interacting with counsel is almost as natural as it would be in the courtroom. And aside from a few glitches, which are always to be expected when you try something new for the first time, I think it was a resounding success.
Yet we are fortunate. As complicated as the process is, the Supreme Court is an appellate court – Canada’s top appellate court. We hear fewer cases than other courts do. We don’t hear from witnesses. We have access to technology and expertise that other courts may not, due to resource constraints. We need to ensure that all courts can continue to deliver justice to Canadians, which is our duty as the judiciary.
Together with the Minister of Justice, the Honourable David Lametti, I established an Action Committee comprised of experts in the justice system, public health, and workplace safety. It is an “action” committee in the true sense of the word. The members of the Action Committee, which include three other Chief Justices, in addition to myself, have identified the challenges of jury trials and hearings in small courtrooms, circuit courts, and remote courts as our immediate focus. We are also looking at the longer-term effects the pandemic will have on our justice system and how we can address those. And we are taking the opportunity to start the conversation about long-standing issues that we can improve for the future.
Our justice system was not prepared for a pandemic emergency, and as a result many things immediately came to a halt. Courthouses were closed. Trials were postponed. The Minister of Justice and I knew the system had to keep working, but that we had to do it safely, protecting the health and safety of all participants. I was a lawyer for 25 years, and presided over countless trials, including jury trials, as a judge. Last year, I said at this press conference that it was time to start taking “action for justice.” As Chief Justice, I can’t do much directly – but I can use my experience to propose and discuss practical and pragmatic solutions with stakeholders. At the very least, we have to make sure that the problem of delay, which was so chronic before, does not get substantially worse. Let me be clear : To do nothing would be irresponsible.
These are not simple challenges and there are no simple solutions. But we have some of the best minds in the country working on these problems, not just through our Action Committee but also through the Canadian Bar Association, The Advocates’ Society, and others. All stakeholders in the justice system have a responsibility to contribute to solutions. I’m confident the changes we make will make our justice system more resilient and more efficient in the years to come.
I have already said that judges do not live in ivory towers, and that we are an integral part of the society in which we live. We would not be able to do our jobs without paying close attention to what is going on in the world around us. However, as judges, we must remain independent and impartial. We express ourselves primarily through our rulings.
During the last few weeks, we have all witnessed people from around the world denouncing racial discrimination and racial violence. It is important and necessary to fight against injustice, regardless of where it happens and how it appears.
In Canada, section 15 of the Charter guarantees that every individual has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race. Unfortunately, as the Supreme Court has pointed out, this guarantee has sometimes been evaded.
Barely one year ago, in Le, the Court referred to numerous research studies that showed the harmful effects of racial profiling on racialized communities in Canada. The Court underlined that members of racial minorities have disproportionate levels of contact with the police and the criminal justice system, and that they are more likely to suffer rights violations and to be injured or killed following interactions with the police. There is nothing pleasant about these observations, but they are concrete facts.
We also know that Indigenous communities have long been victims of stereotypes, prejudice and discrimination, as was well documented by the Truth and Reconciliation Commission. The Supreme Court recognized this fact in Barton. In this case, as a result of the use of degrading stereotypes regarding an Indigenous woman, an accused had to be retried. In Ewert, the Court described the extent to which the systemic discrimination that Indigenous offenders face is more harmful to them, for example, in that they are less likely to benefit from an early release.
These cases all show the ways in which racial prejudice and racial discrimination clearly lead to unjust results.
I have said many times that all Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an “other” when they confront it. Judges sitting on the bench in Canada today, whatever their background, care deeply about delivering justice to all Canadians and make great efforts to understand all aspects of the legal issues they confront. This includes racial context, implicit bias, and systemic challenges. Organizations like the Canadian Judicial Council and the National Judicial Institute, which I am very proud to chair, provide guidance and education for judges in this country. This is a priority and we have created a number of excellent programs and resources to help with this. I also think there is a growing awareness of the need for our courts, including our highest court, to reflect the diversity of Canadians. I certainly would welcome the insights and perspectives this could bring.
The last year has been a busy one for the Court. Last July, the Minister of Justice and I signed an Accord aimed at recognizing and reinforcing the Court’s independence. The Accord sets out the relationship between the Chief Justice and the Minister of Justice, and furthers important goals of clarity and openness.
I would also mention that in December, the Court delivered an important decision on administrative law. The Court recognized that this area of law was unclear and, in some cases, unworkable. My colleagues and I decided it was time to look at it again, and chose three cases on two different issues to allow us to come up with a new approach. Our new framework, set out in Vavilov, changed the way courts look at administrative decisions, with the goal of making the law clearer and more predictable. This will increase access to justice by helping people better understand how courts will look at the administrative decisions that affect them.
As you know, access to justice is an issue that I care deeply about. Accordingly, last fall, I decided, with the support of my colleagues, that the Supreme Court would travel to Winnipeg and that, for the very first time in its history, it would hear cases outside Ottawa. In total, we spoke with thousands of high school students and hundreds of law students. We also met with members of Indigenous groups, the francophone community and the legal community. My colleagues and I participated in a question and answer period, as well as in an informal meeting with members of the public held at the Canadian Museum for Human Rights. We hope to repeat the experience in another city in 2022.
Access to justice is the reason we publish our Year in Review, which can be consulted on the Court’s website. It is also why we publish Cases in Brief, short summaries which are written in plain language and which aim to explain how and why we arrive at a given decision.
I believe that access to justice is a common thread between, on one hand, the measures taken by the justice system to deal with the pandemic and, on the other hand, the efforts needed to thoroughly modernize the justice system. We are experiencing a very difficult time. However, a crisis can often be, and must even be, an opportunity for real change. I hope that such changes will occur and that I will have the opportunity to speak about them with you next year.
But, for now, I will answer your questions.