Opening the Canadian Judicial Council

The SCC has already made improvements under Wagner, but the same cannot be said for the Canadian Judicial Council, which is chaired by the chief justice.

In this issue, we profiled Supreme Court Chief Justice Richard Wagner in our regular “Cross Examined” section of the magazine. While we profile lawyers and judges in every issue, this time we felt it required a bit more space, given our subject.

Despite the name of the section, we don’t generally cross-examine the lawyers and judges who we profile. We prefer to hear about their career and accomplishments in a less confrontational manner. For Wagner’s profile, Elizabeth Raymer spoke with the chief justice, but she also heard from many of his colleagues throughout his career, his son and former Supreme Court judges.

One of the common themes Raymer heard from many was transparency. Wagner has already brought several initiatives forward to improve openness at the Supreme Court and, as Raymer found, this has been a consistent preoccupation throughout his career.

While these initiatives are laudable, it was one remark he made that sparked my interest — that he anticipates turning his attention to the reform of judicial conduct matters as well. The SCC has already made improvements under Wagner, but the same cannot be said for the Canadian Judicial Council, which is chaired by the chief justice.

Recent examples that have hit the headlines demonstrate how transparency is desperately needed. For example, the treatment of Justice Patrick Smith, who temporarily took over the role of dean at the Bora Laskin Faculty of Law after former dean Angelique EagleWoman resigned citing “systemic discrimination,” has been mystifying. Even though Heather Smith, chief justice of the Ontario Superior Court of Justice, had approved the temporary appointment after receiving a legal opinion, the CJC chose to launch an inquiry.

Further back, many critics, including a former Supreme Court judge and law school dean, found the CJC’s allegations against Lori Douglas — thoroughly dissected in a cover story in our pages in 2016 — were “badly handled” and “unsavoury and unnecessary.”

The CJC has also recently asserted that its decisions are immune from judicial review. While there are different ways to improve transparency, arguing that judges who are being investigated should not have access to court review seems problematic.

The Supreme Court of Canada is not perfect, and it can still suffer criticism from the public when it seems distant or out of touch. But it has steadily increased its transparency over the years, with video cameras in the court, facta available on its website and chief justices such as Beverley McLachlin speaking publicly about the court and how it works.

Richard Wagner is carrying on this tradition and bringing his own flavour to the court. Transparency is clearly as important to him now as it has been throughout his career. While he is not the only person who can improve the transparency of the Canadian Judicial Council, I hope his zeal for transparency is applied there as it has been on our top court.

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