ASSOCIATION OF PROGRESSIVE MUSLIMS OF CANADA
WELCOME ABOUT US NEWS EVENTS PROJECTS SPONSORS AWARDEES SPEECHES CONTACT US
KEYNOTE ADDRESS BY BARRY LEON
Delivered at Parliament Hill on
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
·
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
·
To us
in this country, it is trite to say that the Constitution is the
cornerstone of
·
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?”
·
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
·
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
·
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
·
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
·
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
·
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.
·
·
That
power is used by our courts.
·
At its
most basic level, the Rule of Law promises to the citizens and residents
of
4.
Protection
of Minority Rights
·
The
concern of
·
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
·
We know
how critically important it is that a society protect — and respect
— its minorities.
5.
Judicial
·
Judicial
·
Under
the Constitution, the judiciary is separate from and independent of the
other two branches of government: the
Executive and the Legislature.
·
Judicial
·
free of
influence, and
·
based
solely on fact and law.
·
Judicial
·
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.
·
·
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.”