Earlier this year, the Canadian Bar Association organized a conference of Canadian lawyers, judges and journalists to discuss judicial independence. It was certainly timely, coming on the heels of the resignation of Justice Russell Brown and an announcement by the Department of Justice that it intends to improve confidence in the justice system by addressing issues with the complaints process against federally appointed judges. 

These events and research in the area suggest that Canadians’ confidence in their judicial system may be on shaky ground. 

Of course, it could be worse. Not surprisingly, Canadian citizens have expressed greater confidence than Americans in their respective supreme courts. The Canadian judiciary lacks the overt American partisanship in its appointment process, sparing it much of the acrimony that plagues the careers of U.S. justices.  

Furthermore, despite some general assessments of the ideological bent of Canadian judges, there is little evidence that the Canadian bench is politically or ideologically polarized in the same way that the U.S. Supreme Court is.  

Still, many features of Canada’s judicial system are far from satisfactory. The legal process has long been assessed (by the chief justice, no less) as being costly, inefficient and lengthy.  

According to Chief Justice Richard Wagner, access to justice has become a privilege of the wealthy. In response to court delays that stretched into years, the Supreme Court ruled in 2016 in R. v. Jordan that cases must be tried within 18 months in provincial courts and 30 months in superior courts. 

Could the combination of costs, inaccessibility and the influence of the headlines about courts south of the border culminate in a decline in support for Canadian courts? 

While it’s unclear how often the average Canadian thinks about the courts, the Canadian Election Study has asked Canadians to assess their overall level of confidence at each election cycle over the last few decades.  

Figure 1 suggests a few subtle but notable trends from 2008 to the present.  

First, the overall number of Canadians who report “a great deal of trust” in the courts has declined from 26 per cent in 2008 to 11 per cent in 2023, while those who report having no trust has risen from four per cent to slightly more than 10 per cent over the same period.  

While the most typical response for Canadians is that they have “quite a lot” of trust in the courts, the increase in those who have “not very much” confidence is troubling.  

Who specifically feels less confident in the judicial system?  

Our survey data, collected in May 2023, provides additional information. Those who had a solid understanding about the Supreme Court (for example, those who knew the number of justices or knew whether there is an Indigenous justice on the court) had higher levels of confidence (60 per cent compared to 50 per cent for those with lower knowledge). 

Granted, this could reflect the fact that those with higher levels of education and those who consume more news tend to also have more positive views of the court. 

Interestingly, there was a nearly equal, but negative, effect for those who had direct contact with a court. This suggests that experience with the courts tends to facilitate less institutional confidence – 53 per cent of those with experience in the system reported confidence compared with 62 per cent of those who had no interaction.  

This may be a commentary on the process itself. The time, money and research that court appearances demand of individuals, not to mention the stress and anxiety that precedes going to court in the first place, can be substantial. For some, a court ruling is life-changing.  

Our research from 2022 and 2023 presents some evidence of segregation in attitudes across society. Broadly speaking, Conservatives appear to have less confidence in the courts than supporters of other political parties (a finding corroborated by Angus Reid’s polling data).  

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Also, women appear to be more comfortable than men with the idea of “court curbing” – or reducing the powers of the courts in the face of unpopular decisions. 

Those with more progressive attitudes toward equality and those expressing higher levels of satisfaction with democracy in general appear to have greater confidence in the courts. Most importantly, trust appears to breed trust, because those with higher levels of institutional confidence in general are also more confident in the courts.  

Presuming this works in both directions, a decline in trust in governments at home and abroad probably does little to bolster court support. 

It’s not all bad news for Canada’s courts. When faced with the decision about whom they trust more on rights-based matters, Canadians appear to hold the courts in higher regard than the government.   

Data from the Canadian Election study shows relative durability in support for the courts having the final say on matters concerning the Canadian Charter of Rights and Freedoms. Consistently over time, 60 per cent or more declared a preference for the courts.  

The data also suggest that a clear majority (more than 60 per cent) believe that the court can be trusted to make decisions in the best interests of the Canadian people, although respondents also strongly believe the court’s decisions should reflect the values and beliefs of Canadian society (nearly three-quarters of respondents agree) (figure 2).  

Taken together, this suggests that Canadians’ support for the courts might be dependent on how closely it is embedded in, and reflects, the values of Canadian society.  

Canada’s courts are not facing a legitimacy crisis, at least not yet. Caution is warranted, though. Once a downward trend has begun, there is no easy answer for rebuilding the public’s confidence.  

The Supreme Court’s long road to transparency and inclusiveness 

Why regional representation on the Supreme Court does (and doesn’t) matter 

Time to rethink the Supreme Court appointments process 

On the other hand, our survey data suggest that those who know more about the courts have more confidence in Canada’s judicial branch. In this respect, Wagner’s efforts to make the Supreme Court more public-facing may be well-placed.  

That a citizen’s direct experience with the courts likely has a negative impact on their confidence in the judicial branch is concerning. Like Canada’s access-to-justice problem, this finding presents a multi-faceted and likely related challenge. While judges have an important role to play when it comes to an individual’s experience with the justice system, they are ultimately just one actor amongst many.  

A partial solution may be to fill the vacancies in Canada’s courtrooms and to increase the total number of judges so that more cases can be heard in a more timely fashion. But this is only a small piece of the puzzle.  

The judicial system, in general, must consider adapting before concerns escalate to a crisis in confidence.