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When Chief Justice Richard Wagner sits in the main courtroom of the Supreme Court of Canada, he says he feels a sense of responsibility — and stress.
“I think that the day when I will not have this feeling, that might be the day I would need to leave,” Wagner said.
Wagner presides over a Supreme Court that is witnessing change. Soon, the building will close for renovations expected to last about a decade, and the court will move its operations a stone’s throw away from its current spot in Ottawa.
The chief justice said if the walls of the Supreme Court could speak, they’d reveal scores of arguments and tell tales of critical legal battles that have been settled in the building, amounting to decisions that affect generations of Canadians.
“Since 1945, the court sat in this building and will continue to do it in another place,” Wagner said. “But it means a lot for the evolution of society. And boy, that Canada has evolved a lot since 1945.”
Part of that evolution gets to the very heart of what the Supreme Court embodies — impartial, independent thought that scrutinizes and evaluates federal, provincial and territorial law.
Today, some provinces want to shake up the system that decides who scrutinizes their work, calling for a constitutional change to give themselves more say in how federal judges are appointed at the provincial level.
That push comes amid a wave of frustration from some provincial leaders, like Alberta Premier Danielle Smith and Ontario Premier Doug Ford, who have decried “anti-democratic” judicial decisions or blasted “bleeding heart judges.”
As the country’s top justice, what does Wagner make of this ongoing political debate over Canada’s judicial system? CBC’s The House spoke with him earlier this week to get his thoughts.
Don’t expect agreement, but trust
Wagner told host Catherine Cullen he would not comment on the remarks from premiers like Smith and Ford, but he highlighted “it’s a wrong conception of impartiality to expect judges to follow what politicians think.”
“We don’t expect people to agree with all the decisions of our courts, but we expect people to trust the institutions,” Wagner said. “In other words, you can disagree, but accept the process.”
When asked whether a politician arguing a court decision is wrong undermines Canada’s judicial system, Wagner said politicians can appeal the decision or change the law.
In what he called his “rant for the day,” Ontario Premier Doug Ford criticized some of the province’s judges for having “nothing better to do” but interfere with issues like Toronto’s bike lanes “because of their ideology.” Ford suggested adopting a similar system to parts of the U.S., where judges are elected.
“Ultimately, Parliament is sovereign. They make the law — judges and the courts interpret the law. So they may agree or disagree, but they should not contest the legitimacy of the courts,” the chief justice said.
Regarding the appointment process some provinces want changed, Wagner said there’s no perfect solution.
But he highlighted that people “should be convinced they have an [impartial] judge in front of him or in front of her. That’s important, because when there’s no more trust, well, there’s no more democracy at the end of the day.”
The Constitution currently states that Ottawa alone has the right to appoint provincial superior and appeal court judges.
Changing it in this case would require approval in the House of Commons, the Senate and by at least seven provinces whose shared population represents more than half of all provinces combined.
The federal government has said it has no plans to change how judges are appointed, arguing there’s already already a mechanism by which the provinces can consult with the federal government over judicial appointments, and that process is working.
Addressing case backlogs
During his interview, Wagner also said he thinks “within the next few years” Canada can overcome its nagging issue that hundreds of trials are being dragged on past their legal limits and thrown out.
“I hope that the public will understand that we’re on the right path because now everybody is sensitive to those issues, which was not the case 20 years ago,” Wagner said.
“And they should realize that steps are taken very seriously to avoid any stay of proceedings, and I think we can do it.”
As the Supreme Court of Canada prepares to adjourn for the summer, Chief Justice Richard Wagner said although he saw ‘resolve and a strong sense of engagement’ among Canadians who continue to believe in federal institutions, that trust ‘cannot be taken for granted.’
In a 2016 ruling the Supreme Court set strict time limits for criminal trials — 18 months for proceedings at provincial court and up to 30 months at Superior Court, calling those “ceilings” the Jordan framework.
Last month, the Supreme Court provided clarity on what exactly qualifies as exceptional circumstances that merit a trial delay beyond the Jordan limit.
Wagner told Cullen he feels one stay of proceedings is already one too many, and he’s previously highlighted that underfunding of Canada’s judicial system is the root issue.
Earlier this week, Wagner disagreed with criticism that the Jordan framework is undermining the Canadian justice system and said Jordan is “the right scheme.”
“It is unfair for a victim to wait for five years to testify in a criminal trial. It is unfair for the accused to wait for five years to have his trial, or her trial. It was unfair for everybody and for society,” he told reporters during his annual news conference.