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 small pleasure when I come back here.
M-E: You’re a bit at home here.
RW: Absolutely, absolutely.
M-E: What do you think would be the biggest breakthroughs in recent years in terms of access to justice in Canada?
RW: I think the greatest advances in Canada have been in the area of access to information, which is key with respect to access to justice. Before being able to exercise rights within a reasonable period of time, one must first know if one has rights and how to exercise them afterwards.
Earlier, I mentioned the creation of CAIJ, but there have been many other institutions of a legal or quasi-legal nature that have allowed the transmission of information, public affairs programs, documentaries, but the courts can also play a role at this level, as we do a little bit at the Supreme Court, on our website. We assist, for example, people who represent themselves, who file an inquiry for permission to appeal, which, often, is a laborious process because they will not, obviously, be trained as a lawyer on the rules of practice, or on the way to file motions for example. So what the courts need to do is accompany these people. It’s not necessarily to prevent them from exercising their rights but to help them exercise their rights.
All of this is done at all levels of the courts system, whether it’s a municipal court, or whether it’s the Supreme Court of Canada.
Depending on the year, there are between 20% to 25% of leave to appeal applications filed by self-represented individuals. So, by definition, this is a large volume and we have decided to offer court accompaniment for them.
So it requires a lot of staff time, a lot of phone calls, correspondence, exchanges, and so on. But I think that this is part of the information that we give to citizens that will ensure that this citizen will have confidence in the institution. And so it starts with information.
So, the information component in legal matters, I think that this is where we have made the most progress in many ways, as we said earlier, when the CAIJ was created, there were public information programs that were obviously useful as well.
So there have been several efforts that have marked the, I would say, the last 20 or 25 years that testify to better information at the legal level.
M-E: Are there other observations that you can make now, several years later? What challenges remain? Are there other findings, other places where there are needs in terms of access to justice?
RW: Obviously, beyond information, when we talk about access to justice, we are talking about representation. So there are costs and delays. What we have noticed over the last 20 years is a strong tendency for many citizens to abandon their rights. Abandonment that is explained by the enormous costs, by the realization that it takes a lot of time as well.
And so it’s absolutely necessary to make sure that people don’t abandon their rights simply for monetary reasons or for reasons of time.
And in this sense, over the last 20 years, we have noticed a greater proportion of people who represent themselves alone in litigation before the courts, both at the trial level and in the appeal process.
At the beginning of the 2000s, I was a Superior Court judge, and we began to see in the early 2000s people who represented themselves alone, in family matters, for example.
When I went to the Court of Appeal, I told myself that there should not be the same level of personal representation, and yet, we began to see people who represented themselves alone, even on appeal.
And now at the Supreme Court, I can assure you that we still see it. In our motions for leave to appeal, between 20% to 25% are cases in which people represent themselves alone. And we’ve even heard cases on the merits where people were representing themselves. So it’s a strong trend that needs to be addressed, and I think there’s a lot of work, a lot of work to be done in this area.
M-E: And is that what the pandemic has brought to light and all the thinking that surrounds, for example, the gradual resumption of regular court sessions? You sit on the committee for the resumption of judicial activities, are there any lessons to be learned from the current era, ultimately in terms of the accessibility of justice?
RW: Your question is interesting because from the very beginning of the pandemic, in the weeks that followed, together with the Minister of Justice, Mr. Lametti, I set up the committee, an action committee for the resumption of the work of the courts in Canada, and it was intended to be an immediate emergency response measure. As we were talking about earlier, the courts found themselves in a situation where they had to react quickly and urgently, so that’s what led us to set up this committee.
And on that committee, well, there are all sorts of people who sit on it, specialists, public health officials, chief justices of certain provinces at all levels, who are called to the superior court, officials who help us, political representatives, attorneys general, the Department of Justice. And all of these people were initially called upon to develop or identify best practices to ensure the resumption of court work.
Really, it has materialized especially in criminal matters for the resumption of jury trials. So all the policies that are now on our site, in fact it’s the site of the Commissioner for Judicial Affairs, we have all the work of our committee that is posted on that site, which gives a good description of the work we have done. Since then, we have been meeting once a month, and within this committee, which was intended to be an emergency response committee to develop our policies and to enable the authorities, whether the courts or civil servants in the various provinces, to resume their work, we identified the most vulnerable groups and we were called upon to study and make recommendations on best practices to help these people.
Essentially, we talked about Aboriginal people, for example, people who represented themselves, people in rural areas. So the whole issue of access to justice in rural areas suddenly found its way into the work of our committee by extension, and this work and this reality with which we are currently working will remain afterwards. This has allowed us, through this terrible crisis, to have some positive aspects. We talked about new technologies earlier. But we also talked about this committee, which highlighted the particular needs of the most vulnerable groups in remote regions and especially among Aboriginal people, access to the Internet, for example, access to mental health services.
So all this information was revealed within the framework of this committee, which was intended to be an action committee for immediate responses. So yes, there are good things that will come out of this and discoveries that will allow us to bring new solutions.
M-E: It’s incredible how the pandemic has revealed things that we took for granted, in fact, basic services that had to be done and restarted.
What was one of the greatest discoveries you made in this process?
RW: Well, I’ll tell you that it’s a rather philosophical discovery. It’s the resilience of people. I discovered that people, human beings confronted with a new situation can be very resilient. And when it’s survival that’s at stake they can be willing to consider new things and innovate. And this is my philosophical observation.
Obviously, this pandemic has allowed us to discover other things, for example, what I’m going to talk about in terms of daily realities, for example. I didn’t know that it was so complicated for… and so difficult for some people, in certain more remote regions, to have access to the services that we think we usually have, the Internet, medical services, etc. I had no idea that it was so complicated.
This is a reality that has been put into perspective, but I would say that when you look around this terrible crisis you realize that with good will, human beings can, by resilience, respond quickly. And therefore necessity is the mother of invention,
M-E: Yes, absolutely.
RW: And I think we’re in a period of great necessity.
M-E: …And of invention…
RW: By the same token.