The Government of Canada has formed a self-described national leadership body called the Action Committee on Court Operations in Response to COVID-19. The committee is co-chaired by the Honourable David Lametti, Attorney General of Canada, and the Right Honourable Richard Wagner, Chief Justice of Canada. According to the federal government, the purpose of the committee is to develop national principles on the promotion of a “harmonious approach to restoring Canadian court operations” after the pandemic shutdown is lifted.

1. The Mandate

The committee’s mandate was described in a post to the Department of Justice website (here) to include providing national guidance to support the restoration and stabilization of court operations; to facilitate information sharing and promote best practices; to focus primarily on the resumption of in-person judicial processes; and, to consider measures to modernize the justice system. The committee was initially composed of:

• Right Honourable Richard Wagner, Chief Justice of Canada (Co-Chair)
• Honourable David Lametti, Attorney General of Canada (Co-Chair)
• Honourable Geoffrey Morawetz, Chief Justice of the Ontario Superior Court of Justice
• Honourable Mary Moreau, Chief Justice of the Court of Queen’s Bench of Alberta
• Honourable Terry Matchett, Chief Judge of the Provincial Court of Alberta
• Honourable David Eby, Attorney General of British Columbia
• Nathalie G. Drouin, Deputy Attorney General of Canada
• Tina Namiesniowski, President of the Public Health Agency of Canada
• Renee Theriault, Executive Legal Officer, Supreme Court of Canada

Chief Justices Morawetz and Moreau are representatives of the Canadian Judicial Council. Former Chief Judge Matchett was the Past Chair of the Canadian Council of Chief Judges.

On May 8, 2020, the Department of Justice announced that the committee held its first meeting. The announcement (here) stated that the committee’s work will focus “on developing court-specific health and safety guidelines that can be adapted to the needs of individual courts and communities.” While the courts in Canada have remained open during the COVID-19 pandemic, court operations have been severely restricted as a result of public safety measures implemented by governments. The mandate of the committee, to ensure that the judiciary and court administrators have access to the best available information and practices, will be critical to public safety during the resumption of in-person services in the court houses across the country.

2. The Chief Justice in the Public Square

On June 13, 2020, in an article titled Supreme Court Chief Justice suggests Criminal Code changes to cut into court backlogs (here), Olivia Stefanovich of CBC News reported Chief Justice Wagner as stating that “we” are asking that “amendments to the Criminal Code be done” including changes to “the number of jurors and the rules of conduct” in criminal cases. The comments made by the Chief Justice drew critical responses from criminal defence lawyers. On June 18, 2020, in a follow up article for CBC News titled Some lawyers say Chief Justice Wagner crossed a line by suggesting Criminal Code changes (here), Ms Stefanovich reported Toronto lawyer, Adam Boni, as saying that legislative changes to jury composition could be challenged under the Charter of Rights and Freedoms. The Supreme Court of Canada, as the highest court of appeal, would be the final arbiter of the constitutionality of such changes. John Struthers, president of the Criminal Lawyers’ Association, characterized the Chief Justice’s comments about “politically charged legislative changes” as “highly problematic”.

3. What’s at stake?

It is deeply concerning for the Chief Justice of Canada to make public statements on a prospective legislative agenda. It is all the more concerning for the Chief Justice to actively inject his office into discussions about how that agenda may be shaped. It is a violation of the constitutional separation of powers, undermines the independence of the judiciary, and erodes Canadian democracy. It is the function of the judiciary to rule on the validity of legislation after enactment, not participate in the policy debate before enactment. The legislative process is inherently political and the judiciary has no place in the political arena.

Although the Attorney General of Canada may consult the judiciary on matters affecting the administration of the courts, there is nothing specific in the committee’s terms of reference that engages the judiciary in the development of legislative policy – irrespective of transparency. If the federal government has concerns about the validity of any legislative action it may take, the proper recourse to the courts would be a reference question brought by the Governor in Council under s 53 of the Supreme Court Act. The conduct of the Chief Justice has compromised the rights of the Governor in Council under the statute.

Litigation may be initiated in criminal cases by a constitutional challenge under the Charter or by originating pleadings under provincial rules of court. The legal tests of necessity and proportionality are on the horizon. Under s 11(d) of the Charter, every Canadian has the right to an independent and impartial court, free from political influence, in the application of this analytical tool by the judiciary to determine the over-breadth of government action. The Chief Justice has compromised the fair trial interests of all Canadians as beneficiaries of the right to an independent and impartial court – a right that is intrinsic to the rule of law.

Chief Justice Wagner would do well to bear in mind the majority opinion of his court in Mackin v New Brunswick, [2002] 1 SCR 405 where the late Justice Charles Gonthier held that a court must not only be truly independent but it must also be reasonably seen to be independent. “[I]n order for independence in the constitutional sense to exist,” he said at para 38, “a reasonable and well-informed person should not only conclude that there is independence in fact, but also find that the conditions are present to provide a reasonable perception of independence. Only objective legal guarantees are capable of meeting this double requirement.”

The independence of a particular court has a dual dimension; an individual dimension and an institutional dimension. Individual independence relates to the adjudicative function of judges whereas institutional independence relates to the status of the judiciary as an institution that is the guardian of the Constitution of Canada. Although both dimensions are engaged by this controversy, it is the institutional dimension that is my primary concern here. As Justice Gonthier went on to say in Mackin, at para 39, the judiciary as guardian of the constitution “reflects a profound commitment to the constitutional theory of the separation of powers.” (See also: R v Valente, [1985] 2 SCR 673 per Le Dain J, at para 20)

That is the point. The commitment to the separation of powers is diminished when the judiciary invades the domain of the executive and legislative branches and publicly engages in a policy debate about what a legislative agenda might be. In The Federalist LXXVIII, May 28, 1788, Alexander Hamilton, one of the Founding Fathers of the Constitution of the United States, put it this way: “The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment.” (In, Bailyn (ed). Debate on the Constitution, Part Two. The Library of America (1993), at p 468)

4. Conclusion

If the reported comments of Chief Justice Wagner are accurate, he should resign from the COVID-19 committee in order to protect the rights of the Governor in Council, the right of every Canadian to a fair trial, and the integrity of the Supreme Court of Canada as the guardian of the constitution. Without open independence, and the communication of that independence to the public, the Canadian judiciary cannot claim legitimacy.