Do Canadians have confidence in their Supreme Court? | Agnès Whitfield

By Agnès Whitfield

Law360 Canada (January 5, 2023, 1:54 PM EST) --
Agnès Whitfield
Agnès Whitfield
In its latest Year in Review, for 2021, the Supreme Court of Canada affirms that “Canadians can have confidence that the Supreme Court of Canada is impartial and independent.” But do they? Chief Justice Richard Wagner seems to think so.

In a November interview with Radio-Canada journalist Micheline Laflamme, he considered good news an Angus Reid survey indicating that 54 per cent of Canadians have confidence in their Supreme Court. Notwithstanding the chief justice’s positive spin, the figure is hardly one to be proud of and surveys show that public confidence in the Supreme Court of Canada, along with the judicial system in general, is steadily losing ground. In 2015, according to an Angus Reid survey, 61 per cent of Canadians said they had confidence in the Supreme Court, and 51 per cent in the courts, compared to 71 per cent who reported the same in 2011. In a similar survey in 2016, only 57 per cent said they had confidence in the Supreme Court of Canada and only 44 per cent said so of provincial courts.

A 2022 Angus Reid survey, released last October, just before Chief Justice Wagner’s Radio-Canada interview, shows a further decline, with only 48 per cent of Canadians expressing confidence in the Supreme Court. Except for Quebec (59 per cent) and Ontario (48 per cent), public confidence was less than the national average in every province. Confidence in the provincial criminal courts was even lower, with 55 per cent of Canadians saying they do not trust the criminal courts in their home province.

Decline in access to court

“The Supreme Court of Canada is always adapting to serve Canadians better and improve access to justice,” indicates the same Year in Review, but members of the public looking for information on how, concretely, the court is working on improving access to justice will be disappointed. Considerable space is given to “Meaningful New Heraldic Emblems,” a new flag and badge unfurled in March, that “express the values of our institution: justice, independence, integrity, transparency and bilingualism.”

Despite its positive title, the section “Embracing Change,” deals with minor changes in filing rules to make it simpler for someone to apply to the court for leave to appeal, but the impact on access to the Supreme Court appears negligible. The decrease in applications for leave from self-represented litigants, from “its high of 33 per cent in 2016 to 19 per cent in 2021,” is presented as progress, rather than a sign of decreased access to the court, and further erosion of public confidence. The statistics on caseload presented for the years 2012 to 2021 show a significant decline in the number of leaves to appeal granted, and hence reduced access to the court, from 12.5 per cent in 2012 to 7.2 per cent in 2021.

Other sections of the report offer an impression, at least to this reader, of a certain clannishness at odds with the court’s professed values of transparency. A section on “Law Clerks at the Supreme Court” presents these positions as providing “an invaluable experience.” What is highlighted is not their impact on understanding how the administration of justice can be improved, but the “friendships and professional connections” these positions provide. This focus on professional privilege and networking opportunities is explicitly accredited by Chief Justice Wagner, quoted as saying: “It’s a tight-knit community. People keep these ties forever, no matter what they do in the future, no matter what country they work in.”

Judicial independence and the deficit in responsibility

Chief Justice Wagner’s insensitivity to the crisis in public confidence in the court and our court system generally is deeply troubling. Public dissatisfaction with the failure of the judicial system to deliver on the professed values of the court — justice, independence, integrity, transparency and bilingualism — has been documented for years, if not decades. The Department of Justice’s State of the Criminal Justice System Annual Report for 2021, highlights the ubiquity of sexual harassment and assault in Canadian society, and the low rates of reporting, due to lack of confidence in the judicial system. Systemic discrimination against Indigenous people in the criminal justice system has been amply acknowledged. Numerous reports underscore the persistent impediments to equitable access to justice in French outside Quebec.

The cost of legal action is a major barrier to access to justice, and the main reason why, as of June 2016, according to a federal government report, between 50 per cent and 80 per cent of parties to civil/family actions are self-represented. A University of Windsor study found that legal assistance is increasingly unavailable for many vulnerable litigants in Canada, with pro bono services for self-represented litigants having declined from 24 per cent in 2015-2016 to 8.4 per cent in 2019-2020.

One can well ask what chance Canadians affected by these inequities have to be heard by the Supreme Court of Canada? Due to lack of funding, alone, so many worthy cases never make it to a Court of Appeal, let alone to the Supreme Court.

In his two previous Year in Review, Chief Justice Wagner appears to view accessibility primarily in terms of explaining the court’s work to Canadians, notably through cases in brief, and conferences by judges. Such initiatives, useful as they may be, are essentially public relations measures. They help publicize the work of the court, but they contribute little to increasing accessibility to the court or improving how it serves the public. Nor do they provide information about how decisions are made to grant or refuse leave to appeal to the court. That information is left to the happy few with inside access to the court, or the financial resources to proceed. Chief Justice Wagner is an ardent defender of judicial independence, but this laudable principle cannot become a way to batten down the hatches and avoid engaging with legitimate public concerns.

Simply affirming the public has confidence in the court will not make it happen. Let’s hope for a more equitable and enlightened approach from the chief justice in 2023.

Agnès Whitfield is professor of English and French at York University. She holds a doctorate in Quebec literature from Laval University and is an ardent defender of French-language rights in Canada.

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