Smith speaks about judicial independence and how to address the erosion of courtroom decorum
Deborah Smith was appointed the chief justice of the Supreme Court of Nova Scotia in 2019. Before her judicial career, she practised civil and family law for 17 years at McInnes Cooper. She sat in the Supreme Court of Nova Scotia family division until 2004 when she was appointed associate chief justice and transferred to the court’s general division. She was the first female associate chief justice appointed in the province of Nova Scotia.
For our CL Talk podcast, we spoke to her about virtual proceedings, courtroom decorum, judicial independence, being a female legal leader and how the profession has changed over her 40-year tenure.
Listen to our full podcast episode here:
You can also find this episode on our CL Talk podcast homepage with links to follow CL Talk in all the major podcast providers.
Below is a summary of the conversation, edited for length and clarity.
What are some of the most significant challenges facing the courts today?
On a global level, it is the erosion of the rule of law. The fundamental principle of a free and democratic society seems to be called into question, which I find very concerning.
On a smaller level, it's the condition of the courts themselves. Everyone agrees that a strong and vibrant democracy requires a strong court system. The reality, however, is that many of our courts are struggling. We have courthouses in poor repair, and staffing levels are critical in several of our courthouses.
Of course, the government only has so much money to go around, and society has many needs, such as health care and education. But I think it's fundamental for governments to recognize the importance of providing and maintaining a robust court system.
What changes, if any, have you seen in the courts because of the pandemic?
The pandemic fundamentally changed how we do business. Many of these changes are positive. For example, it opened our eyes to the benefits of technology. Every court in the country appreciates the need to modernize. The pandemic has taught us that, as an institution steeped in tradition, we can function effectively with the proper use of technology.
But there have also been some negatives. A group of young lawyers began their profession during the pandemic, and they have little to no courtroom experience. They don't understand courtroom decorum or the importance of traditions. In Nova Scotia, many lawyers choose to work from home. As a result, less team building and mentoring are going on, which, in my view, is a fundamental need in the life of the new lawyer.
What are your views on which proceedings are best in-person and which can remain virtual?
In Nova Scotia, we've published our default positions on in-person proceedings. Our hearings and trials are held in person, subject to the trial judge's discretion. I fully support that position. People's demeanour and participation vary greatly, depending on whether they participate in a proceeding in person or virtually. Respect for the institution itself is diminished when people are calling it in. Respect for the courts is never enhanced if a party participates in a proceeding and orders a double-double simultaneously. And yes, that has occurred.
There's always going to be a need for virtual proceedings. They're helpful in many circumstances. However, they should not be the default position. I often say to people, “It's not what we can do. We know that we can do things virtually. It's what we should do.”
Some parts of the process, such as scheduling, must be suited to virtual court.
There's no sense in requiring everybody to enter a courthouse for basic procedural matters. It is also an access to justice issue in remote and rural areas, where it's tough, particularly in the winter, for people to get to court.
I'm cautious to say it's hearings and trials specifically where I feel the default position is in person. I try to do motions for directions over the telephone. We don't even have to do a Teams meeting. If I am giving an interlocutory decision, I won't require everybody to come in and watch me do it.
On the other hand, if I'm giving a final decision, and it's essential to the parties, I think it's vital that they attend court and hear the decision. There are some circumstances, such as when somebody's health doesn't allow them to come in, they are immune compromised and coming into a courtroom will be very difficult. Or you've got a party on the other side of the country, and the hearings will be half a day and having them travel to Halifax doesn't make much sense.
I understand that you feel strongly about court decorum – why?
The judges in my court are very aware of my position on this. I feel that public respect for institutions is diminishing generally. For many cases that we deal with, we issue a piece of paper, and we want individuals to abide by that piece of paper. If we want them to do that, they must respect the institution. They will only respect the institution if we insist on having proper decorum.
How has technology impacted courtroom decorum, and how do you address this in your court?
Technology has presented some challenges for us about courtroom decorum. Whether it's lawyers who are improperly attired when participating virtually or witnesses who don't seem to appreciate that they're still in a courtroom, I find that there's a real difference in decorum when conducting a virtual proceeding.
It's incumbent upon the presiding justice to ensure that the parties and counsel understand the importance of maintaining decorum. In Nova Scotia, we have developed guidelines relating to virtual proceedings designed to help maintain decorum. However, we still struggle even if you send those guidelines to the clients and the lawyers.
It's understandable. Sometimes, they're in their living room, their dog comes in, or things happen. I'm not suggesting we not use it. I think there's an actual use of technology in the court's future. But if we want to have respect for the institution, I believe we must ensure that we don't go purely virtual and have what I call telephone court. I don't want that at the Supreme Court in Nova Scotia.
You chair the Canadian Judicial Council judicial independence committee. Can you share insights into its work?
This committee is very multifaceted, as our name implies. We're concerned with protecting judicial independence in Canada. I believe a strong independent judiciary is crucial to a robust democracy. We also work to ensure that the public and government representatives properly understand what judicial independence is and why it's so important.
In the past few years, our committee was tasked with revamping the ethical principles for judges, and it made sense that the judicial independence committee would oversee that project. The CJC felt that judges must have up-to-date ethical guidelines. But respecting the judiciary's independence in drafting that document was also crucial. Our committee understood the need for both.
Finally, part of our mandate is to provide input into the judicial application process, i.e. what works and what improvements can be made.
You were involved in updating the ethical principles for judges. How have these principles been modernized?
I'm incredibly proud of the CJC's work preparing updated ethical principles for judges.
We're all aware of the issues seen across the world these days concerning the judiciary and ethics. We were in a very timely spot when we decided to revamp the principles. They advise judges on many areas we face regularly, but they also give the public a good idea of the type of conduct that's expected of a judge.
In my view, our principles do help instill confidence in the judiciary. We tackled several new topics when updating the principles, including the use of social media and how to properly assist self-represented litigants, which we rarely saw when I started as a judge, but we have regularly in our courtrooms.
We talk about the use of case management and settlement conferences. Over the years, I've realized that when people file a proceeding at the Supreme Court, they're not necessarily looking for a trial but a dispute resolution. If we can provide a less expensive resolution and less emotionally taxing, we will serve the public better and enhance access to justice. So, we thought it essential to include principles about settlement conferences, mediations, and the like.
We also dealt with topics such as public engagement. I think judges are much more in the public. The very fact that I'm doing this interview with you is evidence of that. I don't think ten years ago, I would have done that.
We discuss the need for ongoing professional development. We have an excellent education program in Canada for the federal judiciary. Still, we recognize that we all require continuing education in many different areas, including substantive law and social context education.
Finally, one of the new topics we dealt with is the post-retirement return to practice. When you became a judge twenty years ago, that was your final career. Now, many people leave this job and do other jobs. They go back to the practice of law and choose to do something else. So, we thought putting some ethical parameters around that would be helpful.
You were the first woman appointed as the associate chief justice in Nova Scotia and only the second woman appointed as the chief justice of the NS Supreme Court. What advice do you have for other women pursuing leadership roles in the legal profession?
Hang in there. Historically, many women chose to leave the practice of law early. There are real opportunities for women, but you can't take advantage of those opportunities if you don't remain in the profession.
Believe in yourself. I find that women can have a greater tendency to question their abilities. But they shouldn't do that; their abilities will speak for themselves.
Finally, stay true to what you believe. Women bring their perspectives and life experiences to the table. I would encourage them not to feel they must mould themselves into a man's world.
I hope we get to the day where it isn't newsworthy that it's a woman who has a position like mine; I think we're almost there.
You have been involved in the law, either as a lawyer or as a judge, for over 40 years. How have things changed in the practice of law?
The change in the practice of law over the last four decades is, quite frankly, shocking. People find this hard to believe, but when I started, there was no such thing as a billable hour. You looked at the file, saw the result you accomplished, and decided what a reasonable invoice would be. We didn't even know what 0.6 meant. One of my greatest joys when I was appointed to the bench was that I didn't have to record my time all my time.
I'm sad to say this, but law has changed from a profession to a business in many ways. This might have been necessary in some ways, but I encourage every lawyer to remember how fortunate we are to work in the law and how important it is to remember that we're still a profession.
When I was a young lawyer, you were expected to follow a senior lawyer for several years and learn the ropes. Much of that seems to have disappeared. It's surprising how many young lawyers come to court without mentors. Understandably, they really don't know what they're doing because law schools don't view it as their job to teach people how to be a lawyer.
If you don't have a mentor, you struggle when you come into the court. They're looking at me to try to teach them. It's tough to do that and still appear unbiased to the other side. So, it's crucial that senior lawyers take time to mentor and help train new lawyers and that junior lawyers seek mentors to help them navigate the challenging first few years.
