Supreme Court has ensured independence by obtaining financial security, says Chief Justice Richard Wagner

Open this photo in gallery:

Supreme Court Chief Justice Richard Wagner says the top court has obtained financial security that ensures its independence, under a new agreement that requires the Justice Minister to pass through its budget requests – “without alteration” – to the Finance Minister.

An administrative pact signed in July by Chief Justice Wagner and Justice Minister David Lametti protects the court from any government tempted to cut funding for support services as a way to rein in the judges, he said.

“We don’t sell anything, so we have to get our funds from government,” the Chief Justice said in an interview in his Ottawa office, which looks across to the Parliament buildings. “We have to find ways to make sure the government or agencies can not directly or indirectly put pressure on judges through the administrative process.”

While it’s the first such accord in the 144-year history of the court, similar agreements or “memoranda of understanding” exist in some provinces, says Neil Wittmann, who retired two years ago as chief justice of the Alberta Court of Queen’s Bench.

“Everybody realizes that the government has a responsibility to the electorate to manage the taxpayer dollars, but sometimes, in some of the provinces, there are experiences in the judiciary where the government will do something unilaterally to cut money, save costs, which takes the judiciary by surprise,” he said.

In his experience, when one party surprises the other, “somebody says: ‘You shouldn’t have gone ahead without consulting us.’” Then written arrangements replace informal ones.

In a statement, Mr. Lametti called the accord a milestone in the institutional relationship between the court and the executive branch of government, affirming a commitment to judicial independence and the rule of law.

Chief Justice Wagner was appointed to the court in 2012 by then-prime minister Stephen Harper, and as chief justice in December, 2017, by Prime Minister Justin Trudeau. The court made controversial decisions during the Harper years, including rejecting Justice Marc Nadon for being legally unqualified in 2014. He had been Mr. Harper’s choice for a spot on the court. Mr. Harper later publicly accused then-chief justice Beverley McLachlin of having acted inappropriately behind-the-scenes in relation to the Nadon case, and she publicly denied his allegations.

During Mr. Trudeau’s term in office, there have also been controversies, such as leaks this spring revealing a disagreement between Mr. Trudeau and his former justice minister, Jody Wilson-Raybould, over the 2017 appointment of Justice Sheilah Martin.

Chief Justice Wagner denied, however, that any specific event prompted the agreement. He began discussions with Mr. Lametti’s predecessor, Ms. Wilson-Raybould, a year and a half ago, he said, not long after he became chief justice, as part of a broader set of initiatives aimed at reinforcing the court’s transparency and independence.

“I cannot tell you that we experience, as such, formal problems with respect to budget requests. It’s a matter of expediting things to improve the relationship and not so much to answer to a specific problem.”

In his early period on the court, the government pushed for high-tech software to be purchased for all by a single federal agency, he said. “The court was considered to be part of the government. We resisted that because we needed some independence as far as our computer information was concerned.”

The court’s current annual operating budget is slightly more than $25-million, plus about $11-million in funding set out in federal law for judges, employee benefit plans and pensions for retired judges, and will stay at roughly the same level over the next three years. Those budgets were slightly lower in the Harper years but remained steady.

Court watchers applauded the agreement, which is not binding in a legal sense.

“Chief Justice Wagner has made it clear that one of his goals is to maintain Canadians’ confidence and trust in our legal system and in an institution central to the law,” said Eugene Meehan, an Ottawa lawyer specializing in Supreme Court matters and a former executive legal officer at the Supreme Court. “The accord furthers that goal more forcefully than his past initiatives.”

Kyle Kirkup, who teaches at the University of Ottawa’s law school, says the agreement is an important step in protecting the country’s democratic institutions.

“The accord bolsters judicial independence by spelling out a clear set of predetermined rules,” he said in an e-mail.

The court has already declared itself constitutionally independent (in the 2014 case in which it rejected Justice Nadon); its key features are unchangeable, except by a constitutional amendment. The pact makes clear that the chief justice is to play a key role in the hiring of and direction given to the court’s registrar and deputy registrar, who administer much of the court’s day-to-day work.

“In the absence of written rules, you might worry about a government’s ability to unduly influence the Supreme Court through dismissals and appointments of the registrar and deputy registrar,” Mr. Kirkup said.