Judicial Biography: Chief Justice Richard Wagner

Post 1/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019).

In this Guest Post, Student-at-Law Heather Donkers discusses the Chief Justice’s career as a member of the Quebec civil bar and priorities in leading the Supreme Court of Canada.

Since his appointment to the Supreme Court of Canada (the “Court”) in 2012, now-Chief Justice Richard Wagner has contributed significantly to the Court’s jurisprudence and reputation as an institution. In particular, since being appointed to lead the Court in 2017, Chief Justice Wagner has found myriad ways to make the Court more accessible to the public and has been a leading voice on promoting access to justice.

Biography

Chief Justice Wagner was born and raised in Montreal, QC. He obtained his Diploma of College Studies in 1975 from Collège Jean-de-Brébeuf before receiving a Bachelor of Social Sciences from the University of Ottawa in 1978, graduating cum laude. Finally, he earned a Licentiate in Laws from the University of Ottawa’s Faculty of Law in 1979, also graduating cum laude.

Chief Justice Wagner was called to the Quebec Bar in 1980. From 1980 to 2004, he was a partner at Lavery, de Billy SENCRL / LLP (formerly Lavery, O’Brien and Lavery, Johnston, Clark, Carrière, Mason & Associés), where his practice focused on professional liability and commercial litigation. As a litigator, Chief Justice Wagner  argued cases before all of the Quebec courts and quasi-judicial tribunals, as well as before the Federal Court and the Supreme Court of Canada.

Throughout his years in practice, Chief Justice Wagner was actively involved in initiatives that sought to improve the legal profession and to assist Quebec lawyers. He was an active member of the Canadian Bar Association, chaired the liaison committee of the Bar of Montreal and the Superior Court of Quebec, and sat on a number of related committees. In 1998, he was a founding Fellow of the Canadian College of Construction Lawyers, an organization that facilitates and encourages the association of lawyers who are distinguished in their experience of practicing or teaching construction law. He was elected First Councillor of the Bar of Montréal for 2000-2001 before being elected Bâtonnier of the Bar of Montréal for 2001-2002. At the time, Chief Justice Wagner also chaired the Barreau du Québec’s applications committee and sat on the General Council of the Barreau du Québec, the administrative committee, and the finance committee.

Chief Justice Wagner’s work in the Quebec legal community also extended to law students. In 1989-90 and 2001, Chief Justice Wagner taught trial advocacy courses at the École du Barreau du Québec. In 2003, he taught a course on civil procedure under both the former and the new Code of Civil Procedure at the École du Barreau du Québec.

In 2005, Chief Justice Wagner received the Barreau du Québec’s Award of Merit in recognition of his contributions to the legal profession. In particular, Chief Justice Wagner was honoured for the role he played in the creation of the Centre d’accès à l’information juridique (CAIJ), which has provided access to legal information for members of the Quebec bar since 2002. CAIJ resources include legislation, case law, secondary sources, editable forms and templates, as well as lecture texts. Chief Justice Wagner was a member of the CAIJ’s board of directors and its vice-president until being appointed to the Superior Court of Quebec in 2004.

As a Superior Court judge, Chief Justice Wagner sat on several of the court’s committees. He became a member of the board of directors of the Conférence des juges des cours supérieures du Québec in 2006 and its president in 2009.  He has been a member of the Judicial Conduct Review Committee and the Remuneration Committee of the Canadian Superior Courts Judges Association and has sat on the  board of directors since 2011.

Chief Justice Wagner was appointed to the Court of Appeal of Quebec on February 3, 2011. He was subsequently appointed to the Supreme Court of Canada on October 5, 2012 and appointed Chief Justice of Canada on December 18, 2017, replacing former Chief Justice Beverley McLachlin.

Overview of Leading Decisions

Despite never practicing as a criminal lawyer, many of Chief Justice Wagner’s most notable decisions fall in the realm of the criminal law and its peripheries, such as correctional law. R v Antic, Ewert v Canada, and R v Cyr-Langlois are three of the Chief Justice’s most recent influential decisions. Notably, the Chief Justice utilizes plain-language writing in each, so that the decisions serve as clear guidelines for the lower courts and for the public.

In 2017, Justice Wagner (as he then was) wrote the unanimous and groundbreaking decision in R v Antic (2017 SCC 27), which solidified the purpose of the bail regime in Canada and the role of the judge in denying or granting bail.

The decision first emphasized the importance of the “ladder principle,” or the idea that release from custody is favoured at the earliest opportunity and on the least onerous grounds. Each “rung” of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release, each of which the Crown must justify independently. Justice Wagner, writing for a unanimous Court, also held that a judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or a pledge.

The Antic decision has since been widely relied upon by defence counsel to remind Crown counsel and the courts of their responsibility to impose the least onerous bail conditions that will satisfy the primary, secondary, and tertiary considerations of bail (attendance at court, safety of the public, and the administration of justice). According to CanLii, the Antic decision has been cited in 71 cases since its release in 2017.

In Ewert v Canada (Correctional Service), (2018 SCC 30), Chief Justice Wagner held for a majority of the Court (7-2) that prison authorities must show that psychological and statistical tools used to make decisions about Indigenous inmates are effective for them.

The appellant in Ewert was a Métis man serving two concurrent life sentences. He challenged the use of five psychological and actuarial risk assessment tools used by the Correctional Service of Canada (“CSC”) to assess an offender’s psychopathy and risk of recidivism, on the basis that they were developed and tested on predominantly non-Indigenous populations and that no research confirmed they would apply with the same degree of accuracy to Indigenous persons.

The Chief Justice wrote that the CSC breached its obligation under section 24(1) of the Corrections and Conditional Release Act to take all reasonable steps to ensure that any information that it uses about an offender when making decisions about their fate in the institution is as accurate as possible. However, Chief Justice Wagner also held that the CSC’s reliance on the results generated by these tools in the case of Ewert did not infringe Ewert’s section 7 or 15 Charter rights.

First, to determine whether the results generated by the impugned tools were a type of information to which the statute applied, Chief Justice Wagner conducted a thorough review of the statute. After answering the first question affirmatively, the Chief Justice confirmed that the CSC breached its obligation under the statute and issues a declaration to that effect. Declarations are exceptional and discretionary remedies which should normally be declined where there is an adequate alternative statutory mechanism to protect the rights in question. Chief Justice Wagner determined that in this case, the statutory grievance mechanism that would otherwise be available to the appellant would not been effective because the CSC was not in possession of any tests that had been confirmed as producing accurate risk assessments specifically for Indigenous inmates. Consequently, Ewert should not be required to begin the grievance process over again.

The Ewert decision is an example of clear and concise statutory interpretation giving effect to the various interests at play, while also recognizing the ongoing disparities in correctional outcomes for Indigenous offenders and the importance of mitigating these problems as much as possible.

In R v Cyr-Langlois (2018 SCC 54), Chief Justice Wagner wrote for a 8-1 majority (Justice Côté dissenting) on the fundamental issue of reasonable doubt. At issue in this case was the scope of the evidence that an accused must produce in order to rebut the presumption of reliability of a breathalyzer test as set out in section 258(1)(c) of the Criminal Code. The Court first ruled from the bench, allowing the Crown’s appeal and ordering a new trial, and provided written reasons several months later.

Chief Justice Wagner identified the main issue in the case as follows: Can purely speculative evidence satisfy the accused’s burden to raise a reasonable doubt surrounding the reliability of the breathalyzer test results? The Chief Justice found that the accused’s burden is discharged only if the following conditions are met: (1) the accused adduces evidence relating directly to the malfunctioning or improper operation of the instrument; and (2) the accused establishes that this defect tends to cast doubt on the reliability of the results. While abstract evidence alone may sometimes meet these requirements, concrete evidence is more likely now required as a result of the Chief Justice’s decision.

The brevity of Chief Justice Wagner’s decision in Cyr-Langlois seems to accord with what the circumstances of the case required. It is a clear decision that clarifies the existing requirements and will be easy to follow in subsequent litigation, a welcome reprieve from more lengthy and complicated criminal law jurisprudence. 

Impact on the Supreme Court

Since his appointment as head of the SCC, Chief Justice Wagner’s focus on access to justice and use of plain-language judgment-writing has already made an impact on the Court’s case law and institutional reputation. In a decision that seemed motivated by the same impulse as his adherence to  clear and concise writing, Chief Justice Wagner announced after his appointment that the country’s top court would be rolling out initiatives to improve its public communications. These efforts include publishing the Court’s first annual report, posting plain-language summaries of the Court’s judgments online, and for the very first time, taking all nine judges to hear cases “on circuit” in major cities outside Ottawa, such as Winnipeg, MB. The Chief Justice also made himself available to interact with the public and the media by accepting an invitation to a press conference with Parliament Hill reporters.

Chief Justice Wagner has also supported procedural changes designed to improve access to justice at the Court  itself, such as approving e-mail filing of originating and supporting documents. He also assigns who writes the Court’s unanimous or majority reasons after each two-week period of hearings, reviving an old but much-loved practice that was removed in 2017. (Between 2017 and 2019, the Court experimented with a system whereby each judge had their turn to choose to write, which proved to be unpopular.)

Chief Justice Wagner, who also heads the Canadian Judicial Council, announced in March of this year that he would be launching a sweeping review of the organization in order to ensure that the judiciary is still relevant and responsive to an evolving society, particularly with respect to technology and social media. Among other things, he announced that while he does not favour individual judges engaging on social media, which could potentially compromise their impartiality, he supports the use of social media by the courts to disseminate their messages and decisions to the public. In announcing the decision to allow the Supreme Court to sit outside of Ottawa, Chief Justice Wagner used a personal video statement posted on social media, a first for the Supreme Court.

Most recently, Chief Justice Wagner spoke candidly to news outlets about the importance of legal aid to ensuring that the justice system is fair and efficient for all. Though he declined to comment directly on any specific political happenings, his decision to publicly stress the importance of adequately funded legal aid programs came as Ontario Premier Doug Ford cut provincial legal aid funding by 30 percent and restricted its application to refugee and immigration cases. Chief Justice Wagner noted that the justice system has already been underfunded for the last four decades, and that the Supreme Court’s 2016 Jordan decision should act as a “big alarm” for governments to invest more heavily in supporting the legal system.

Finally, on July 22^nd 2019, Chief Justice Wagner and Minister of Justice and Attorney-General of Canada David Lametti signed an accord aimed at recognizing and reinforcing the independence of the Supreme Court of Canada. In the accord, the pair express their commitment to the independence of the judiciary and to an accessible and effective justice system.

Clearly, a major theme in Chief Justice Wagner’s work – both written jurisprudence and official duties – is making the Supreme Court of Canada more accessible to the general public. I think this to be a welcome shift in the Court’s approach to legal decision-making.