Judges, journalists discuss how interactions can affect judicial independence, rule of law

By Cristin Schmitz

Law360 Canada (June 22, 2023, 4:07 PM EDT) -- Lawyers, judges and journalists came together in the nation’s capital to discuss how their separate roles intersect and intertwine when it comes to preserving public support and public understanding of judicial independence and the rule of law.

Amid growing concerns that democracy is imperiled around the globe, and that Canada’s courts are not immune from misinformation, disinformation and other domestic and foreign attacks, the Canadian Bar Association organized “Courting Confidence: Preserving Trust in Judicial Independence,” a half-day conference at Ottawa’s Chateau Laurier June 21, which attracted some 200 participants, including several dozen people who Zoomed in from across the country.

Supreme Court of Canada Chief Justice of Canada Richard Wagner set the stage for two panel discussions, noting that “people are developing increasingly polarized ideas about what is a fact and what is the truth. This threatens national institutions and democratic practices that uphold some of the newest and oldest democracies,” he said. “This global rise in misinformation is linked to the global assault on democracy and the rule of law.”

Chief Justice Wagner, who chairs the Canadian Judicial Council, said that when he and the other 43 chief and associate-chief justices of the nation’s superior courts met in Ottawa last April they agreed that the judiciary “has a role to play in countering these threats.”

Lawyers, judges and journalists “cannot take for granted what has taken so much time to build, to preserve,” Canada’s top judge warned.  “Judicial independence and freedom of the press asks us to have constant effort and that is from everyone in order to maintain public trust,” he advised. “The stability of our democracy depends on it.”

Manitoba King’s Bench Chief Justice Glenn Joyal

Manitoba King’s Bench Chief Justice Glenn Joyal

Manitoba King’s Bench Chief Justice Glenn Joyal, speaking as part of a panel discussion titled “Crisis of Confidence: The Role of Media & An Informed Public in Upholding Democratic Institutions,” said he sees the relationship between the media and the courts as reciprocal, symbiotic and interdependent.

In his role as chief justice, Chief Justice Joyal said he starts from the premise that the courts have an interest in ensuring that they do everything they can do to maintain public trust and confidence in the courts, on which the rule of law depends. “That's where the media comes in,” he said. “I see that collaboration as an alliance, as one where as a chief justice, I have to make myself and the court systems accessible in a way that allows the media” to perform their “informational” role –i.e. carry out their day-to-day responsibilities for covering cases and events.

The media also have educational and evaluative roles, he said, that is commenting on, criticizing and sometimes assessing the job the courts do. “So if I see, as a chief justice, those three components as a prism through which I want the courts to be understood, for the purposes of maintaining public confidence, I need to make sure that the media has the tools and has access to the processes that allow them to do those things,” he explained. “So in the context of their informational component, I need to make sure that they have, on a day-to-day basis, access to the courts in a way that allows them to report what's going on. It sounds like a basic and sort of mundane, banal provision. But it's not obvious. In fact, that's where most courts probably fall short.”

Facilitating the media’s educational role about courts and the judiciary requires “constant interaction with the media, in ways that go beyond outreach,” he remarked. “Sometimes it means speaking to editorial boards. Sometimes it means speaking to journalists quietly and telling them about our systems, what we're trying to do.” Chief Justice Joyal noted, for example, that when his court was introducing new initiatives in the areas of criminal, child protection, family and civil proceedings,  “it was incumbent upon me to make sure [media] understood what those models were, and why we thought they were important as a way of progressing in the area of access to justice. “

Chief Justice Joyal said his fellow chief justices accept that what their courts do is not always going to be evaluated positively in the media. But it’s also incumbent on chief justices to provide media with relevant “reference points” or criteria to enable journalists to make an “informed and intelligent” evaluation, he suggested. “So let's take, for example, the models that we introduced to the Court of King’s Bench over the last 10 years. They were done in the name of access to justice, . . . that were meant to make the system less expensive, less complex, and more rapid.”

“You set out for the media those criteria, do that in your interviews. You do that in your outreach, you do that in your discussions at editorial boards and your speeches,” he advised. “So suddenly the media has a reference point, a prism, a grid, if you will, by which the court can be judged in an informed and fair way. And if we're not meeting those standards, so be it. We deserve to be held to account.

“But my point in saying all that is, as a chief justice, there is a responsibility to make sure that the media have what they need to do those functions: [the] informational function, the educative function, and the evaluative function. And all of that, if it's done properly, will assist, in my view, in enhancing public confidence in what we do.”

As a senior member of the Canadian Judicial Council (CJC), Chief Justice Joyal was asked about the disciplinary body's  transparency and the “tension” among the unknown considerations the council presumably takes into account in its continuing refusal to disclose publicly basic information about the nature of a formal written misconduct complaint against former Supreme Court of Canada Justice Russell Brown, and its decision not to publicly disclose that a CJC review panel considered the allegations serious enough to refer them to a formal CJC inquiry that could lead to a recommendation for Brown’s removal, if proven.

Chief Justice Joyal replied that in a case “like Brown and an institution like the CJC” and any other court across the country “where there is some degree of limitation or restriction made with respect to what the journalist might want to have more public, you have to understand that there is in every case, an inevitable balancing and consideration and rational careful determination about what can and can't be to be provided. It's not a random or arbitrary determination.”

(Brown resigned June 12, but the facts that the complaint involved allegations of drunkenness and harassment of women — denied by the judge — and that the review panel referred the complaint to a CJC inquiry, came to light only as a result of media reports. The council still refuses to answer detailed written questions from Law360 Canada asking under what statutory provisions, or CJC policies or practices, the council of chief justices may have the discretion to decide whether or not to publicly release a completed review panel report that has been presented to the justice minister, or to reach agreement with a judge not to release a review panel 's report if he resigns.)

Chief Justice Joyal said, “how are these decisions [around transparency] being made if they're not arbitrary? Well, they're being made on the basis of criteria that should be well known to all of us. I'm not saying that they're coming as a result of a decision that's always completely open and transparent, in the sense that you're not necessarily present to see it. But what's important is to understand that the criteria that are being applied are consistent, reliable and predictable.”

He elaborated “some CJC determinations” are going to be based upon jurisprudential commentary, such as occurred in the Slansky and Cosgrove cases  “where issues of judicial independence, privacy, transparency and public confidence are invoked,” he said. “But my point is, transparency is important. The courts would want transparency, but to the extent there will be cases where you can't as media, get everything you want, at least understand that the decisions to not provide you that information are made on the basis of reliable, predictable and understandable criteria, and whether it's in statute, whether it's in a common law decision, or a Supreme Court of Canada landmark decision like Dagenais/Mentuck,  . . . in a world where you're not necessarily going to get everything, there is, I think, a confidence that you can have on the basis of the process that follows a determination that is not arbitrary.”

 Chief Justice of Ontario Michael Tulloch

Chief Justice of Ontario Michael Tulloch

Speaking as part of the morning’s second panel discussion, on “Strengthening Judicial Independence” Chief Justice of Ontario Michael Tulloch and Quebec Superior Court Chief Justice Marie-Anne Paquette both reflected on the serious impacts on the public’s confidence in a justice system that is chronically underfunded and plagued by staffing shortages — a resource crunch also experienced by media.

“The lack of resources in Ontario is very similar to Quebec and they’re raising a significant amount of concerns for us,” Chief Justice Tulloch said, noting that the relocation of a number of suburban Toronto provincial courtrooms into central Toronto has been “a good thing” from the point of view of modernization, economies of scale, and efficiency.

But worryingly, the move is also adding “stress and economic strain” to key frontline court staff, who used to be able to work closer to their suburban homes and had easier and less expensive transit and who work for “a fraction of what is to be expected of someone doing the kind of work that they’re doing.”

“I think there's a general invisibility of frontline staff, people that are working in the courts and a lot of our support staff and the disparity between the income they get and professionals is significant,” Chief Justice Tulloch  remarked.

As in Quebec, Ontario courts are having major trouble recruiting and retaining their staff. “That’s something that I think is a concern and it should be of concern to the government, and if we're talking about judicial independence, I think that the courts and those that administer the courts need to understand this impacts confidence in the public, . . . the way we treat people at the bottom” of the earnings scale, Chief Justice Tulloch said.

Asked how the justice system can earn greater trust from women and racialized people — two groups who express lower confidence in the justice system — Chief Justice Tulloch  said “representation” is important.

Women now make up roughly half the judges and lawyers he sees in the courtroom, he observed. “I think there's a significant difference, though, when it comes to racialized individuals and minorities,” he said.  

Moreover, the fact that “there's a disproportionate amount of people that are racialized, that are charged in some of the urban areas, not just racialized people, but also Indigenous peoples, and there's a disproportionate amount of them that are incarcerated,” contributes to lack of confidence in the justice system, he suggested.

So do media reports on criminal cases that disproportionally highlight racialized people in a negative way. “For example, not only does media show mugshots of racialized people, but they don't do it to mainstream people in the same way,” he advised. “Another thing, they don't report positive stories, in the same way of racialized people, or they hyperlink that to race, so it's not normalized . . .  and that, I think, is also a problem,” he said. “So [media] have to be balanced in the way that they report the news.”

“All of this, in my view, informs the public narrative,” Chief Justice Tulloch said. When racialized and Indigenous people see how they are portrayed in the media, “that informs their perception of the entire [justice] system. So I think, for us to change that negative perception, I think we have to work collaboratively within the administration of justice, those of us that are judges, lawyers . . .because it's important.”

Quebec Superior Court Chief Justice Marie-Anne Paquette

Quebec Superior Court Chief Justice Marie-Anne Paquette

Chief Justice Tulloch echoed the suggestion of panelist Althia Raj, a columnist with the Toronto Star, that courts could help media by organizing informational “bootcamps” to educate journalists about the court system. “So that when they're reporting the news they’re cognizant of some of these issues that actually adversely impact the confidence and the public trust in our administration of justice,” he said.

Chief Justice Paquette, who recently told La Presse that Quebec’s court system is held together with “duct tape,” said it's difficult for courts to build trust and confidence with groups who feel disregarded, mistreated or misunderstood by the justice system, given the severe challenges the judges and staff face in trying to perform even the basic court functions of intaking, hearing and deciding cases.

“In order to build that trust and foster that trust, it takes time,” Chief Justice Paquette said. “It is difficult to build trust when you're stretched thin on everything,” she explained. “When you're short on time for everything, it's sort of, you know, expediency, and [expediency] and building confidence and building trust, they do not really go together.”

Photos of Chief Justices Michael Tulloch and Glenn Joyal, by Blair Gable, courtesy Canadian Bar Association

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.