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Supreme Court judge warns of ‘dangerous’ flaws in the system

Justice Richard Wagner offered his candid perspective on what’s ailing the justice system and his thoughts on how to improve it.

Tony Fouhse/The Globe and Mail

Canada's newest Supreme Court judge has issued a clear call to action for governments and the judiciary to repair a justice system that has become slow, costly and opaque.

In a rare interview by a sitting Supreme Court judge, Mr. Justice Richard Wagner offered his candid perspective on what's ailing the system and his thoughts on how to improve it – prescriptions that include a more transparent process for appointing judges and a commitment to restoring the public's faith in a cornerstone of democracy.

Judge Wagner said that he would like to see a national summit that would bring together lawmakers and the judiciary from across the country to confront the fact that justice is quickly becoming beyond the reach of many Canadians.

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"What we see is a common problem across the provinces," he told The Globe and Mail. "First of all, we should talk to each other."

Letting the court system continue to degenerate would have a steep price, he warned.

"If you don't make sure there is access to justice, it can create serious problems for democracy. It is dangerous … We have to support our judicial system. Sometimes, I feel that people take that for granted."

Judge Wagner also said it may be time for the top judges in every province to undergo a public screening prior to their appointment, a process that is currently confined to the country's highest bench. The move, he contends, would enhance confidence in the courts by lifting the veil of secrecy that shrouds the selection of judges.

"It is a good thing for the country, for citizens and for the judge. It gives additional credibility, and it is a chance to present yourself."

He did not consider his own grilling by federal politicians embarrassing, intrusive or politically partisan.

"I might surprise you, but I liked the process," he said. "There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it and why we do it. I think it's fair and it's reasonable."

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Judge Wagner cautioned, however, that it might not be practical to screen the scores of judges who are appointed to Superior Court benches each year, but it would be possible to start with the small number of justices named to each provincial Court of Appeal.

A senior member of Montreal's civil and commercial litigation bar for many years, Judge Wagner said the one thing that has surprised him since his appointment was the degree of warmth and comradeship on the Supreme Court bench.

"The welcome was extraordinary. I discovered incredible, nice, good people on the court; distinguished people with noble minds."

He said he considers the sentencing of criminal offenders as the most difficult task for a judge, although he shied away from discussing mandatory minimum sentences because challenges to their constitutionality will reach the Supreme Court in the near future.

"I will say that I think discretion is always needed in sentencing," Judge Wagner said. "But I won't go any further than that."

He said he views himself as neither an activist judge who reads expansive meaning into Charter of Rights guarantees, nor a conservative who is unwilling to challenge the laws of the land.

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"It may be a false debate," Judge Wagner said. "Parliament makes the law and the courts interpret it. Some could say there is a political side to judicial decisions, but I don't agree. Members of Parliament are elected and they are the ones who should make the law."

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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