SCC’s Wagner urges vigilance, strong defence against false information, justice system attacks

By Cristin Schmitz ·

Last Updated: Tuesday, June 04, 2024 @ 3:03 PM

Law360 Canada (June 3, 2024, 5:17 PM EDT) -- Canada’s top judge says elected officials should not attack the justice system or the judiciary, based on false information that could shake public confidence.

Supreme Court of Canada Chief Justice Richard Wagner told reporters during his annual media availability on Parliament Hill on June 3, 2024, that although the public generally has “great confidence” in the country’s courts, Canada’s judicial system is not immune to abuse and unfounded attacks.

“Indeed, today we are witnessing attacks on our judges and our institutions, something that we previously only saw” outside the country, he said in French.

“One of the challenges that persists is countering misinformation,” he stressed. “This challenge is more present than ever in the age of social media and the polarization observed within society and, in particular, south of our border.”

Chief Justice Richard Wagner

Chief Justice Richard Wagner

Chief Justice Wagner said some people of good faith are losing confidence in their institutions because they find it increasingly difficult to distinguish fact from fiction.

“Of course, in a democracy, we accept and even hope that decisions of courts are the subject of debate (translation),” he remarked. “But it is important that these debates take place in a respectful manner, and above all, in an informed manner.”

“People should at least read judgments before criticizing them,” he admonished. “We are able to see the damage of all kinds that is caused when judicial decisions are reported erroneously, or out of context, for reasons of sensationalism.”

The chief justice’s remarks came in the wake of a unanimous Supreme Court of Canada decision on sexual assault last March, which included the words “person with a vagina” in a particular context, which led to spurious accusations from some politicians that the judges were devaluing women and the word “woman.”  

The controversy culminated in Quebec’s Minister Responsible for the Status of Women tabling a motion in the provincial legislature — that was adopted without debate —  which denounced the court’s choice of words and dissociated the National Assembly from the use of terms or concepts contributing to “the invisibility of women.” However, a number of opposition legislators later backtracked, admitting that they hadn’t had time to study the ruling. Subsequent media reporting featured expert commentary clarifying that the judgment (which had been welcomed by women’s groups) did not disrespect women, nor devalue “woman,” a word the court used dozens of times in the judgment.

Chief Justice Wagner also declined to comment on Donald Trump’s widely publicized accusation last week that his criminal conviction by a jury on May 30, 2024, was the result of a “rigged” jury trial presided over by a politically biased judge.

Chief Justice Wagner remarked, however, that it is “troubling” when a judge is more scrutinized than the judgment they make.

“It is one thing to express disagreement with a decision, but it is another thing altogether to criticize it because of who the judge is, or how they were appointed,” he observed. “Comments like this undermine public confidence in the justice system. We should be especially concerned when elected representatives say these things.”

Chief Justice Wagner told reporters that he has seen some “improvement” in the problem of Ottawa’s chronic delays in appointing judges to the superior trial and appellate courts across the country since he wrote the prime minister in May 2023, stating that is “imperative that appointments be made in a timely manner” and that “the current situation is untenable and I am worried that it will create a crisis in our justice system.”

The chief justice said that, as of June 1, 2024, there are 57 vacancies on the federal superior courts (about six per cent of full-time posts) as compared to almost 90 vacancies a year ago.

“I understand that the prime minister and the government recognized that there was a problem and I think they’re trying to find a solution,” he said. “That’s a work in progress. In other words, we have to follow the situation. And I think that governments should adopt ... the best system possible to make sure that once a position becomes vacant, that the appointment is done within a reasonable delay.”

Asked by Law360 Canada whether the timing on judicial appointments should be seamless (i.e., as a general rule, appointments should be made as soon as the posts become vacant, without a time gap) or what is a “reasonable” delay, and does it vary depending on the particular seat on the bench to be filled, the chief justice declined to give his take. “It’s not up to me to give the government a delay. It’s a political issue,” he replied. “In other words, it’s an administration issue, and they have to decide themselves what could be a reasonable delay, according to their way of doing things. So it’s not up to me to decide, but they should do the appointments as soon as possible,” he advised. “That’s all I can tell you. And it will be up to the government to decide on the scheme to make sure that the appointments [are] made in a timely fashion.”

Chief Justice Wagner said judicial appointment delays are still “a subject of concern. But since last year, I saw an improvement, and I’m confident that the government will follow [up] to try to appoint judges in a timely fashion.”

As for recent difficulties some superior courts in major centres are having in trying to recruit senior practitioners to the bench — attributed to various factors, including lawyers not wanting to give up lucrative practices for a high-pressure job that pays less, is subject to intense public scrutiny and may also require regular travel — Chief Justice Wagner said compensation might be one contributing factor.

“But also ... the conditions for the judge, working on the bench these days, are very difficult,” he explained. “In most provinces, they don't have enough support, in terms of assistance, in terms of technology, and it has become very difficult for judges to work. And it is known in the legal community, and you will see some lawyers will refuse to apply, if only because of that.”

Chief Justice Wagner said judges generally have good working conditions, are safe and are “privileged” to do the work they do, but “they are doing a very difficult task, and for the last couple of years, we have seen the conditions deteriorate.”

Provincial governments have the responsibility to provide support, and fund enough technology, for the provincial courts and provincial superior courts, he noted. In that regard, there is “still a lot of work to be done,” the chief justice said. “That should help to attract new [judicial] candidates in the future, if the governments ... would provide enough support to do their work,” he said. “I think we need to provide good conditions to attract the best candidates.”

Chief Justice Wagner noted the judiciary is working on a survey of mental health and well-being on the bench.

He also announced that the Supreme Court of Canada is planning a number of events for 2025 to mark its 150th anniversary. Events will include a legal symposium and travel by the judges to five cities across Canada to meet with the local legal community, students, the public and the media.

The top court also issued a notice to the profession on June 3, 2024, announcing new rules that came into effect that day and which apply to all cases, including filings as of June 3 in any ongoing cases. Among other things, the new rules eliminate filing fees and add the electronic filing portal to the rules.

Chief Justice Wagner was asked whether the top court is using artificial intelligence to translate its judgments from English to French and vice versa and to explain to what extent AI can play a role in such translation.

“I see that there’s a lot of interest in using AI to translate decisions and a lot of positive interest,” the chief justice responded in French. “It could help us. AI has a lot of good sides to it. We’re already using it as a society. It’s not about whether we should use it or not. It’s already there. The question is how can we avoid the negative aspects of AI?”

Chief Justice Wagner said an AI expert was invited to speak with the nine justices about AI and to explain the technology’s positive and negative aspects and risks.

On the negative side, “the issue is disinformation,” the chief justice explained, alluding to situations where AI has made up case law, people and language.

“This is an issue that we are paying close attention to because we want to make sure that anyone pleading before a court tells the truth,” he advised. “We don’t want them to use disinformation,” he said, noting that the Canadian Judicial Council which he chairs — and which comprises the 44 chief- and associate-chief justices of the superior trial and appellate courts — had an educational presentation by AI experts at its latest meeting.

“Of course, AI has a positive side as well,” the chief justice acknowledged. It can be used for translation and “could help with access to justice,” he suggested.

A portal on the top court’s website, which since 2023 enables documents to be uploaded confidentially online, “doesn’t use AI now, but perhaps we could improve it with AI,” the chief justice remarked. “So there's great potential, but also great danger. And the question is how do we balance all this?”

Chief Justice Wagner said he anticipates the government will eventually weigh in.  “And we, as judges, have a responsibility to ensure that we do not use AI blindly,” he remarked.

The Supreme Court of Canada is following developments with respect to AI, he said. “We’re gathering information and perhaps, at one point, we’ll release a policy,” the chief justice advised. “Right now we think it’s a bit early. We’re gathering ... as much information as possible.”

In the meantime, “right now, we are not experiencing major problems,” he said. “But we ... are considering using AI to help with access to justice.”

Chief Justice Wagner cited the example of courts turning to technology and online communication platforms, such as Zoom, to provide access to justice during the height of the COVID-19 pandemic. “So perhaps we will turn to AI technology later,” he speculated.  

Photo of Supreme Court of Canada Chief Justice Richard Wagner: SCC Collection

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