Supreme Court of Canada Chief Justice Richard Wagner speaks during a welcoming ceremony on Oct. 28, 2021, in Ottawa.Adrian Wyld/The Canadian Press
Chief Justice Richard Wagner stressed the independence of the Supreme Court of Canada and the court’s value to all Canadians as its nine judges fielded questions from an audience of about 200 who filled an auditorium at Quebec City’s Museum of Civilization and overflowed into the foyer on Wednesday.
The reception from the audience was warm and respectful, as the court pulled back the curtain on how it works and the principles that guide it. Audience members asked about bilingualism within the court and Quebec’s unique status as the only province not to sign on to the 1982 Constitution Act, which includes the Charter of Rights and Freedoms. (The constitution still applies in the province.)
“The Supreme Court is always there for you,” said Chief Justice Wagner, who is from Montreal. “Justice is more than a simple service; it’s a fundamental human need.”
The trip outside of Ottawa is the chief justice’s brainchild. The court’s first such trip was in 2019, to Winnipeg. On his watch, the court now releases plain-language summaries with each ruling, and he holds an annual news conference. The court also has Instagram and Twitter accounts.
“It is difficult to trust in something you don’t understand,” he said in a brief opening courtroom address in French and English on Wednesday morning.
Quebec’s Justice Minister has questioned the legitimacy of the Charter in the province, and in two controversial pieces of legislation, the current provincial government has explicitly opted out of rights protections.
Those laws are Bill 21, which bans certain civil servants from wearing visible religious symbols; and Bill 96, which limits the use of English in education, business and government services. Both are expected to be tested at the Supreme Court.
“Because judges are independent from the legislative and administrative branches of government,” Chief Justice Wagner said, “they are free to deliver judgments that are sometimes unpopular.” He has been chief justice since Beverley McLachlin retired late in 2017. His father, Claude, was a federal and provincial politician, and a judge.
The Chief Justice added: “Judicial independence doesn’t exist for judges but for members of the public.”
The independence was an important note to strike in a province where some politicians have accused the court of being biased in favour of the federal government.
A majority of the judges spoke about the details of their work in fluent French. When the moderator, journalist Isabelle Richer, asked what language the judges use to discuss cases, Justice Andromache Karakatsanis said both.
“We are really a bilingual institution, so in each conversation, in each conference, we speak the language of our choice.”
The judges were often in a loose, playful mood with the audience.
Justice Malcolm Rowe teasingly referred to Justice Nicholas Kasirer as “Mr. Professor” – he is professorial in manner, as well as being a former law dean. Justice Suzanne Côté, when asked if the judges are assigned questions to ask in hearings, said they wouldn’t be able to stick to such plans – “we’re very undisciplined.”
The court presented a human face to the audience. “Sometimes we say that being a member of the Supreme Court is like having eight spouses,” Justice Karakatsanis said. “It’s like in a family, the exchanges are sometimes sharp, but it’s enriching.”
The court’s newest member, Justice Michelle O’Bonsawin, heard her first case earlier in the day. Justice O’Bonsawin is a Franco-Ontarian and the first Indigenous member in the court’s 147-year history.
More than 100 people filled the public courtroom seating in the Palais de justice de Québec on Wednesday morning for the first of two hearings. The subject was whether a driver could be charged with the crime of refusing to give a breath sample when the officer who requested it did not have a screening device easily available to measure the sample.
It was a far less sexy subject than the one scheduled for Thursday, which involves both federalism and growing one’s own marijuana. In that case, Quebec banned personal ownership of marijuana plants in the face of a federal law allowing individuals to own and grow up to four such plants. The question is whether Quebec has the jurisdiction to do so.
But if the purpose in moving the two hearings outside of Ottawa was educational, the courtroom provided a lesson in how the country’s most powerful court works.
The facility of its judges in both official languages was evident. So was the give-and-take between the judges and the lawyers representing the parties and intervenors. The judges regularly interrupt to ask questions; the lawyers are expected to be quick on their feet. There is a civility to it, and while sarcasm may occasionally creep in from a judge or two, it didn’t on Wednesday.
A third aspect was the way a seemingly simple issue involves all sorts of complexities – constitutional rights to counsel and to be free of arbitrary detention, weighed against practicalities of policing, such as the fact that not every officer has a screening device. Another element was the influence of precedent from appeal courts across Canada – although it was clear that the Supreme Court judges could go in an entirely new direction if they choose.