From crisis to opportunity: Chief Justice Richard Wagner discusses the impact of COVID-19 on the justice system

English closed captions available.

M-E: Good morning, Mr. Chief Justice.

RW: Good morning, Dean Sylvestre.

M-E: It’s a pleasure to welcome you, always a pleasure to see you again here at the Faculty of Law of the University of Ottawa.

RW: It’s always a pleasure when I come back here.

M-E: You’re a bit at home here.

RW: Absolutely, absolutely.

MES: Mr. Chief Justice, in March 2020, the World Health Organization declared the world to be in a state of pandemic. Obviously, this has had profound implications for our society. It’s obviously also affecting the justice system. So can you tell us, what transformations had to be made at the court level? What were the challenges you had to face? And how did you experience this personally at the Supreme Court of Canada?

RW: As you say, there is no one who has escaped or is escaping this terrible crisis that our societies have never really seen or experienced. We were all taken by surprise in a certain sense and therefore we had to react quickly. The legal and judicial fields, as well as the others, had to react quickly. I must tell you, without necessarily wanting to make comparisons with other parts of society, that I was quite impressed by the immediate reaction, for example, of the courts at all levels. Whether it was the trial courts or the courts of appeal, there was a reaction and an awareness. Everyone realized the urgency and everyone realized that something had to be done quickly, like in health care, obviously, but in other areas like education – you’re in a better position to talk about that than I am.

But at the judicial level, I found that the judges, the courts and the chief justices turned around – pardon the expression – on a dime pretty quickly to find ways to maintain access to justice, because obviously health is the priority, but access to justice is also a human need and we couldn’t stop. Alimony, it had to be paid, it had to be ordered. Child custody, emergency and injunction matters, etc., criminal matters, our fundamental rights. So, it was necessary to act quickly and there the courts showed creativity in certain cases. The normal reaction was to use technology to supplement the physical presence of the main actors and therefore certain courts were better favored than others. Obviously, the appeal courts are a little easier than the trial courts: by definition, there is no witness, there is no evidence as such. There are lawyers who argue and judges who wait for cases and judicial officers who are the staff, but the real challenge was really the trial judges and it was really the trial courts. And they still managed, by adopting protective measures, by following the directives of the public authorities, to maintain the minimum.

In criminal matters, it has been very laborious and jury trials are automatically suspended. As you know, the province in which we are now, Ontario, has suspended jury trials. Quebec has managed to keep it going forwards, as best it could, with some incidents and suspensions, but it’s problematic. We are not out of the woods, but there is still a desire to accommodate as much as possible. The appeal courts, as I said, the new technology – well I say new, it is new for some, but it is old for others – has made it possible to maintain the hearings.

At the Supreme Court, in March 2020, the building was closed. The court was closed to visitors, so we decided to proceed with the postponement of the hearings to June. And in June, we did it completely by video. So the justices were in their offices, the litigators were at home or at their offices, and we proceeded with the technology to follow through with the hearings. It was a success. Obviously, with the slowing down of the pandemic during the summer and into the fall, we were able to resume in-person hearings, that is to say that the judges were present and lawyers were also present in the courtroom, but with additional protection measures and a limit of people who could be in the courtroom, etc. In November, because of the resurgence of the pandemic and given that lawyers come from all over Canada, in all the provinces, they had to be in confinement when they returned home, so we decided to hold virtual hearings. But the judges are present in the courtroom here in Ottawa, and the parties and the lawyers are arguing by video and it’s going very well.

It should be noted that video technology at the Supreme Court has existed for several years for when the judges are present in the courtroom, but I can understand that many lawyers prefer to come to the court. I can certainly understand, I too liked to come to the Supreme Court to plead, but because of the pandemic, there is an imperative that now people and their lawyers plead by video and it goes very well. We continue, we have no delay in the hearings. In fact, what will happen is that we may eventually run out of cases, because there are fewer cases in the trial and appeal courts.

So, these are the measures we have adopted. Through this dreadful crisis, there are still good sides, that is to say, more people are becoming aware, are realizing the importance and usefulness of technology. We’ve been forced to the use of technology that was already there in some cases, but that we put aside to keep our good old habits. But now we are obliged to use it, and that has awakened the senses for many people.

For us, at the Supreme Court, for example, we have between 400 and 600 motions for permission to appeal per year. Traditionally, the bailiff would pull up with his cart of files and it would take the time it took to use the files and render judgment. Now it’s all on computers and it’s very fast. Decisions come out much faster now. That will remain even after – hopefully in very short order — after the pandemic and I have reason to believe that there will be some other good things left over from the crisis as well.

MES: They say that crises also present opportunities. And I think there are practices that, as you described, have changed. In your opinion, have we reached points of no return in some cases? Are there practices, things that will never be done in the same way again in the justice system? Has this moment allowed the justice system to question certain practices and to say to itself that we must change our ways of doing things?

RW: I think it was an important wake-up call, in the same way that the filing of our decision in Jordan in 2016 was a very, very significant wake-up call that led public authorities to realize that at some point, we need to invest in justice, which we haven’t done in fifty years. It’s not just in Quebec and Ontario. It is everywhere in Canada, everywhere in European countries, in the United States, where the rule of law must prevail. Justice has always been the poor relation. We have put in money, the public authorities have put their money in health, education, which is very good, but we have neglected justice. So, lack of courtrooms, lack of judges, lack of support for staff (salaries, etc.), lack of support for technology (filing of proceedings by computer, etc.). So that was a signal. I think we woke up a lot of people. So there are some good things that have come out of that in the last two to three years, but there’s still work to be done.

In the same way, the pandemic will have had the same kind of awakening effect on people who were less open to technology or to other methods of dispute resolution, but who have now become so, even if only by talking about it. You know, there are several forums now around the world in the judicial and legal community to deal with the impact of this pandemic on the functioning of the courts. That’s excellent. In short, the positive elements: exchange of information, openness, sensitivity to new technology. And so, I think that there are going to be important changes. Are we going to completely change our old habits? No. Should we necessarily change all our old habits? No, because I think that human contact is still essential when we talk about access to justice. So, yes, some things have changed, but not everything.

MES: We have started to have these discussions around virtual justice, artificial intelligence, the way it changes our relationship to justice, but – as you say – there are things for which we will always need human contact and human presence. I don’t know if the pandemic has caused your thinking to evolve a bit in this respect, to see things from another angle. For example, I can speak at the university level, where we said to ourselves that there may be things that we absolutely want to do in person in the future, but there are other things too: we discovered new virtual spaces, other types of training that we can now offer online. So I don’t know if you’ve had the same thoughts?

RW: Absolutely, there was a realization of greater flexibility. Things are much less rigid. We can organize conferences, for example, at a distance around the world. I am president of the Association des cours constitutionnelles de langue française, a three-year term with the ACCF, and so I held a meeting of our board last week. There were people from Africa, from Switzerland, from Canada and from all over the world and we met for a few hours and it was very good I must say. It’s true that we couldn’t shake hands, and of course the lack of physical contact means things are not the same, but there are advantages. It remains to be seen if the advantages are not better or greater than the disadvantages. In other words, in the future, even after the pandemic, will we hold face-to-face meetings or will we continue with virtual meetings? I’m not sure we’ll go back to face-to-face meetings.

As COVID-19 precautions became a necessity in 2020, institutions that had previously depended on human contact were forced to transform their regular ways of doing things. The Canadian justice system faced countless challenges. How could courts continue to operate when in-person proceedings posed a health risk? “Obviously health is the priority,” says the Right Honourable Richard Wagner, Chief Justice of the Supreme Court of Canada, “but access to justice is also a human need and we couldn’t stop.”

In this conversation with Marie-Eve Sylvestre, Dean of the Civil Law Section at the University of Ottawa’s Faculty of Law, the Chief Justice discusses how the Canadian justice system confronted the challenges posed by the pandemic, noting that the crisis brought with it the opportunity to re-evaluate certain long-standing practices. Forced to adapt, Canadian courts have discovered new ways of using technology, leading to improved openness and important evolutions in how information is exchanged.

While the value and necessity of human contact in the Canadian justice system cannot be denied, the Chief Justice notes that not everything will or should go back to the way things were before the pandemic. Through the crisis, the justice system has grown, seizing the opportunity to increase access to justice for all Canadians.

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