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KEYNOTE ADDRESS BY BARRY LEON 

Delivered at Parliament Hill on Thursday, November 22, 2007  

CANADA’S LEGAL SYSTEM: SHOULD WE BE PROUD? 


MAWLANA JALAL-UD-DIN BALKHI RUMI (1207-1273) AN INTRODUCTION   

·                    800 years following his birth, Rumi is said to be the most popular author in the United States today (both by public interest and book sales).  

·                    Scholars agree that one element of Rumi's universal appeal is his sense of inclusiveness. 

·                    During Rumi’s lifetime, he enjoyed especially good relations with people of diverse social, cultural and religious backgrounds. 

·                    Rumi’s ability to bridge the barriers of religion and culture is one reason UNESCO chose to honour the man who said:  

"I do not distinguish between the relative and the stranger". 

·                    And it is one of the reasons UNESCO has marked 2007 as “The Year of Mawlana Jalal-ud-din Balkhi Rumi”. 

·                    It is fitting that we convene here today, on Parliament Hill, including capital city, to honour Rumi, in a country that also prides itself on social, cultural and    religious diversity. 

·                    One need look no further than this country’s Constitution — including its Charter of Human Rights and Freedoms — for proof that Canada places supreme importance on promoting and supporting difference within a unified nation.  

·                    To us in this country, it is trite to say that the Constitution is the cornerstone of Canada ’s legal system. 

·                    Yet, at a time when we see certain countries around the world disregarding their own constitutions and suspending the rule of law, we have an opportunity here this evening to reflect upon Canada’s Legal System, both its strengths, and the challenges it faces, and ask the question: 

            “Should we be proud?” 

 

CANADA ’S CONSTITUTION AND ITS UNDERLYING PRINCIPLES 

·                    The Constitution of Canada includes not only written constitutional texts — such as the Charter of Rights and Freedoms — but also unwritten underlying principles. 

·                    These underlying principles are a necessary part of our Constitution because issues and situations arise over time that are not expressly dealt with in the written text of the Constitution. 

·                    To endure as a society evolves over time, its constitution must contain principles — but not rigid rules — that provide a comprehensive framework for a state’s systems of governance and law, and its evolution to adapt to changing situations and new issues. 

·                    In the mid 1990s, discussion in the Province of Quebec about succession led the Federal Government to ask the Supreme Court of Canada to answer certain questions in relation to the right of Quebec to secede unilaterally from Canada . 

·                    The Court answered those questions in 1998 in a decision known as Reference re Succession of Quebec [1998] 2 S.C.R. 217. 

·                    In its decision, the Supreme Court of Canada took the opportunity to articulate the Fundamental and Organizing Principles underlying Canada ’s Constitution:  

·                    Federalism

·                    Democracy

·                    Constitutionalism and the Rule of Law,  and

·                    Respect for Minorities. 

·                    These principles are by no means exhaustive. 

·                    Other important Constitutional Principles include:

·                    Judicial independence,  and

·                    Responsible government. 

·                    While Canada ’s Constitution is primarily a written one, these Principles inform and sustain the constitutional text. 

·                    As the Supreme Court of Canada has held, they are the vital unstated assumptions upon which the text is based. 

·                    It would be impossible to conceive of our constitutional structure, and therefore our legal structure, without those Principles. 

·                    No one principle trumps or excludes the operation of another. 

·                    Courts may use the underlying principles to “fill in gaps” in the express terms of the constitutional text. 

·                    The Principles are not merely descriptive, but are “invested with a powerful normative force, and are binding upon both courts and governments.” 

·                    Allow me to say a few words about 5 of the Principles. 

1.  Federalism 

·                    In a federal system of government such as ours, political power is shared constitutionally by two levels of government:  

·                    the federal government, and 

·                    the provinces and territories. 

·                    Each is assigned respective spheres of jurisdiction by the Constitution Act. 

·                    Canadian courts have the authority to strike down laws that invade another level of government’s jurisdiction. 

·                    Notably, Federalism was a response to the underlying political and cultural realities that existed in Canada at the time of Confederation, when Canada was formed in 1867 … political and cultural realities that continue to exist today, albeit in a very different way. 

·                    The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation. 

·                    It manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. 

·                    Federalism was the political mechanism by which diversity could be reconciled with unity. 

·                    The principle of Federalism recognizes 

·                    the diversity of the component parts of Confederation, and 

·                    the autonomy of Provincial and territorial governments to develop their societies within their respective spheres of jurisdiction. 

2.  Democracy 

·                    Democracy is a fundamental value in our constitutional and political culture. 

·                    Democracy enables the people of Canada to select their leaders and determine the nature of Canadian Society, and the Canadian legal system, within the perimeters of the Constitution. 

·                    In institutional terms, Democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. 

·                    The media in a democracy is not subservient to the government. 

·                    The media, working in a transparent legislative environment and an open court system is an important element of Canadian society, and is an important protector of our legal system, constitutional government and societal values. 

·                    The military in a democracy is subservient to the elected government. 

·                    It plays important roles — but it can never be more than a servant of the democratically elected government. 

·                    Democracy has been defined by the Supreme Court of Canada as being fundamentally connected to substantive goals, mostly importantly, self-government. 

·                    The Court has articulated some of the values inherent in the notion of Democracy. 

·                    These include:

·                    respect for the inherent dignity of the human person

·                    commitment to social justice and equality

·                    accommodation of a wide variety of beliefs

·                    respect for cultural and group identity, and

·                    faith in social and political institutions that enhance the participation of individuals and groups in society.

3.  Constitutionalism and the Rule of Law 

 

·                    Constitutionalism and the Rule of Law lie at the root of our system of government. 

·                    Constitutionalism requires that all government action comply with the Constitution. 

·                    The Rule of Law protects individuals from arbitrary state action. 

·                    It requires that all government action comply with the law, and most importantly, the Constitution. 

·                    Canada ’s courts have the authority to strike down laws and preclude government action that does not comply with the law, and most importantly, the Constitution. 

·                    That power is used by our courts. 

·                    At its most basic level, the Rule of Law promises to the citizens and residents of Canada a stable, predictable and ordered society.

4.  Protection of Minority Rights 

·                    The concern of Canada ’s governments and courts to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. 

·                    One of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minority rights.

·                    The protection of minority rights reflects an important Canadian Constitutional value. 

·                    Most of us are members of some minority in Canada .

·                    We know how critically important it is that a society protect — and respect — its minorities.

5.  Judicial Independence  

·                    Judicial Independence is a fundamental tenet of the Canadian judicial system. 

·                    Under the Constitution, the judiciary is separate from and independent of the other two branches of government:  the Executive and the Legislature. 

·                    Judicial Independence is a guarantee that judges will make decisions 

·                    free of influence, and

·                    based solely on fact and law. 

·                    Judicial Independence has three components:  

·                    Security of tenure:

·                    a judge is eligible to serve until the age of retirement; 

·                    a judge can only be removed for misconduct or inability to perform his or her role; 

·                    the removal process is itself an independent judicial process; 

·                    the government of the day cannot arbitrarily remove or suspend a judge. 

·                    Financial Security:  

·                    Judges should be paid sufficiently in an in a manner that does not leave them in a position of dependence or subject to pressure. 

·                    Governments cannot change judges’ salaries or benefits without first consulting an independent commission. 

·                    Administrative independence:  

·                    No one can interfere with how courts manage their essential processes and exercise their judicial functions. 

·                    For example, it is the chief justice (or his/her designee) who chooses how cases are assigned to the judges of a court. 

·                    As stated by the former Chief Justice Dickson: 

            It is only where the law is interpreted by an independent judiciary
            with a vision, a sense of purpose and a profound sensitivity to
            society’s values, that the rule of law, and therefore the citizen’s rights
            and freedoms are safe. 

·                    Canada has been successful in selecting and appointing independent, well-qualified and professional judges. 

·                    Supreme Court judges, Superior Court judges for the Provinces, and Federal Court judges are appointed by the Federal Government. 

·                    Instances of patronage have decreased considerably over the years. 

·                    Instances of judicial corruption or impropriety are extremely rare. 

·                    No judge has been removed or suspended due to political pressures or other arbitrary influences. 

·                    We are a nation in which the integrity of the judiciary is steadfastly upheld. 

·                    Both civil and criminal litigants can be confident that at the very least their cases have been heard and fairly considered in accordance with the law and based on the evidence. 

·                    Even the appearance of bias or partiality is strongly guarded against. 

·                    There are, however, some challenges to judicial independence in Canada. 

·                    For example, there has occasionally been talk of introducing Parliamentary review of judicial decisions, and calls for appointment procedures that would permit legislators to choose judges on the basis of political ideology. 

·                    Occasionally, we see a few members of the media — or a few elected representatives — unfairly or aggressively criticizing judges, or the judicial system itself, because of a particular court decision, to the point, it sometimes appears, of infringing on judicial independence. 

·                    Our experience is this regard has been mild compared to what occurs in other countries
. . . but unacceptable nonetheless. 

·                    Canadian Lawyers and Judges as a whole rightly consider themselves guardians of the Legal System and Rule of Law. 

·                    They have resisted and stood firm against pressures on Judicial Independence. 

·                    It also is incumbent on the media -- and on all citizens and residents of Canada — to be ever vigilant and to guard and protect our Legal System and the Rule of Law. 

EVOLUTIONARY MODEL, NOT REVOLUTIONARY MODEL 

·                    The principles I have spoken about: 

·                    embody the fundamental assumptions that underlie Canada’s Constitution and Legal System as a whole, and 

·                    inform the analysis for the evolution of our written constitutional text to meet new social and political realities of our expanding and increasingly diverse population. 

·                    We are privileged in that Canada relies on an Evolutionary — not a Revolutionary — model for the development of our country and the development of our legal system and our laws. 

·                    Our constitutional history illustrates that our governing institutions have: 

·                    Adopted and adapted what we have seen elsewhere as suitable for our society, and 

·                    adapted and changed to reflect changing social and political values and realities. 

·                    Our legal system — right from early days — is replete with examples of Evolution:  

·                    We adopted a Common Law system from the United Kingdom;  

·                    We adopted a Civil Law system from France;  

·                    We adopted a Federalism concept and concept of judicial review of government action from the United States; and  

·                    We adopted the concept of a Charter of Rights from both the U.S. and Europe. 

·                    And in all cases we adapted what we adopted to fit our society and its needs and values. 

·                    Related to this Evolutionary model — and illustrated by it — is a Harmonization between Canada’s Legal System and those of other countries around the world. 

·                    This Harmonization is increasing as our world continues to shrink. 

·                    It is becoming a commonly accepted practice in Canada for courts to refer to International Law, and to court decisions of other jurisdictions as persuasive authority on a particular issue. 

·                    We do not see this as impinging on our sovereignty or our values. 

·                    Rather, we see this as an opportunity to benefit in Canada from the experience of peoples elsewhere. 

·                    As well, due to the increasing globalization of commerce, business people are increasingly choosing to have their dispute resolved through International Commercial Arbitration. 

·                    This is leading to: 

·                    a “global harmonization” in international dispute resolution processes, and 

·                    diminishing differences between legal systems and different jurisdictions. 

·                    As part of our commitment to our Evolutionary approach, one of Canada’s current challenges is to be sensitive and understanding of different legal systems and different legal traditions. 

·                    In many instances, Canadian institutions are working to meet those challenges. 

·                    For example, as Canada’s Muslim population continues to grow, Canadian authorities have began considering the applicability of Shari’ah law in certain contexts. 

·                    Recently the Canadian Office of the Superintendent of Financial Institutions received two proposals to open Shari’ah compliant banks. 

·                    Such institutions would neither give nor charge interest and would not engage in speculative transactions. 

·                    And they would not be involved in transactions having to do with pork products, alcohol, pornography or gambling. 

·                    As well, established banks in Canada have started to offer new products for Muslim investors and customers. 

·                    It is not easy sometimes for majorities to understand, accept and accommodate — even when fundamental values and institutions are not at risk. 

·                    Majorities often are not as thoughtful or tolerant as they should be. 

·                    Often the lack of tolerance and thoughtfulness is embarrassing, as our national newspapers have pointed out on the question of voter identification. 

·                    And sometimes some members of minorities over-react, and see “racism” and “intolerance” in words and actions that really just reflect a lack of sensitivity, thoughtfulness or exposure. 

CHALLENGES FACING CANADA’S LEGAL SYSTEM

·                    I have outlined virtues and strengths of Canada’s Legal System. 

·                    I would be remiss to end without a brief discussion of challenges we face. 

·                    I want to mention two significant challenges beyond the accommodation of minorities, about which I have already spoken. 

·                    They are: 

·                    Access to Justice, and 

·                    The Balance between Individual Rights and Security. 

·                    One significant issue is “Access to Justice”. 

·                    Middle-class Canadians increasingly have difficulty because of the cost and complexity of participation in Canada’s judicial process. 

·                    A Canadian of middle-class means may have to re-mortgage his or her home, or use his or her retirement savings, to access the system. 

·                    Those with some income and a few assets may be ineligible for Legal Aid. 

·                    Funding for legal aid, ombudspersons and regulatory remedies has decreased in recent years. 

·                    This injustice is compounded for people who have no choice but to represent themselves. 

·                    In some courts, close to half of cases involve a self-represented litigant. 

·                    Access to justice in our country has become an important challenge. 

·                    Much of our Legal System also faces inordinate delays and a significant back-log. 

·                    There are significant delays in the processing of both criminal and civil cases. 

·                    This causes numerous difficulties:

·                    Witnesses’ memories fade with the passage of time,

·                    Witnesses may not be available due to sickness or death, and

·                    Documents and other evidence can be more difficult to locate.

·                    Delays also prevent litigants from being able to get on with their lives.

·                    Accordingly, for civil cases, the use of arbitration has been growing, and courts have been promoting various forms of mediation as more effective ways of achieving resolution and settlement of disputes.

·                    While this is positive, some cases should go to court. 

·                    They raise legal issues that should be considered by the courts for the good of the litigants and the development of the law. 

·                    A second significant issue for the Canadian Legal System is balancing individual rights and security. 

·                    Like many countries in the world today, particularly in this post-911 era, Canada struggles with striking the appropriate balance between individual rights and security. 

·                    As Chief Justice Beverly McLachlin stated, we cannot choose between maintaining security and maintaining rights.  We must have them both. 

·                    In times like these, it is too easy to underestimate the importance of preserving liberties and the Rule of Law. 

·                    We must carefully guard against their erosion in the face of legitimate increased security demands. 

·                    Earlier this year, Canada’s Parliament debated whether or not to extend two provisions of the Anti-terrorism Act. 

·                    One of the provisions at issue allowed police to arrest and detain suspects for up to three days without charge. 

·                    The other provision compelled individuals with knowledge of terrorist activity to testify before a judge. 

·                    Neither of these provisions had been applied. 

·                    The Government wanted to extend the pieces of legislation that were set to expire on March 1, 2007 pursuant to a five-year sunset clause. 

·                    But, the extension was defeated in the House of Commons 159 to 124.  

CONCLUSION

·                    I have shared with you both the many strengths and some of the challenges of Canada’s Legal System.

·                    Let me close by giving my answer to the question I posed at the beginning, and which forms the title of this speech. 

            “Canada’s Legal System:  Should we be Proud?” 

·                    My answer is “Yes”. 

·                    Perhaps nothing is more important to a civil society than a functioning Legal System that is just and accepted, and maintains social stability and security. 

·                    We have been lucky in Canada to have developed a Legal System that I believe is as good, or better, than any in the world. 

·                    The Constitution, and the principles which underlie it are entrenched. 

·                    And we are a nation that has, and continues to, evolve peacefully to meet the evolving social and political challenges facing it. 

·                    We are fortunate that we have the constitutional tools to do so. 

·                    We should therefore be proud of Canada’s Legal System. 

·                    However, that pride should be one that should be tempered by humility, and a recognition that we must face our challenges head-on, and diligently guard and protect this precious asset. 

·                    In the context of being proud yet humble about Canada’s legal system, let me end with by referring again to the words of Rumi who spoke of being proud but humble:

            “Giving thanks for abundance is sweeter than the abundance itself.”