Canada’s Legal System at 150: Democracy and the Judiciary

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

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Introduction

Next year – 2017 – Canada will be 150 years old. It will be a time for celebration. But it is also a time to reflect on where we as a people have been and where we are going. How does our nation emerge from its first century and a half? How robust are the institutions that sustain it? What can we do to strengthen and sustain them for the decades that lie before us?

Canada’s democracy stands on three institutional pillars – Parliament, the executive and the judiciary. For the past thirty-five years, my passion and preoccupation has been with the third branch of Canadian governance – the judiciary. So today, as we stand on the cusp of our nation’s 150th birthday, allow me to share with you my thoughts on the Canadian judiciary, past, present and future.

The Past

It is important to understand the past, for if we do not, we cannot understand the present, much less the future. So let me begin with a brief history of Canada’s legal system – a history I divide into three chapters: post-colonial; transition; and the modern era ushered in by the Constitution Act, 1982.

The Post-Colonial Period

In 1867, the British Parliament passed the British North America Act – or BNA Act, and Canada was born. The new country was different from England. It was grounded in a written constitution and it was a federation – features alien to the mother country. But in other respects, it mirrored the British model. Canada, like Britain, would rest on three pillars of governance. The first pillar was the legislative branch, comprised federally of the Senate and the House of Commons, and provincially of the legislatures. The second pillar was the executive branch, comprised of federal and provincial Ministers of the Crown. The third pillar was the judicial branch, comprised of judges appointed federally pursuant to s. 96 of the BNA Act.

Like British judges, the judges of the new country of Canada would be independent. Judicial independence in England had been won only through a long constitutional struggle. On the one side stood the monarchs, who viewed themselves as the fount of law and hence – not unreasonably by their lights – sought to control judges. On the other side stood jurists like Lord Coke, who maintained that the task of judges was to apply the law as they saw it, not to do the King’s bidding. These jurists took the view that to do justice between the parties in the cases that came before them, judges must not only be impartial, but be seen to be impartial. And for impartiality, actual and perceived, they must have guarantees of independence, notably, fixed terms of appointment, fixed salary and security of tenure. The rule of law required no less. The new nation of Canada’s constitution thus enshrined the principle of judicial independence ^{Footnote 1}.

For eighty years after Confederation, Canada’s legal system functioned as a shadow replica of England’s legal system. England’s laws became Canada’s laws. To be sure, the Canadian Parliament and legislatures passed their own laws in this post-colonial period. And to be sure, those laws were often uniquely Canadian, as a result of Canadian realities and the country’s federal status. But the common law of England, private and public, was the common law of Canada, and Canada’s judges applied English law. Just to be sure there was no slippage, Canada’s final court of appeal was the Judicial Committee of the Privy Council, sitting in Westminster on the banks of the Thames. The Supreme Court of Canada – which, befitting its secondary status, wasn’t created until 1875 – was just a stop on the way to London, when it was not bypassed altogether. Only in 1949, with the abolition of appeals to the Judicial Committee, did the Supreme Court of Canada become Canada’s final court of appeal.

The Transitional Period

The post-colonial legal epoch that ended in 1949 was followed by a transitional epoch, in which Canada incrementally moved from an Anglo-centric legal system, to a system that was uniquely Canadian. Slowly, dependence on British sources weakened, and Canadian judges like Chief Justice Laskin and Chief Justice Dickson began to articulate Canadian perspectives on the old principles and the statutes ^{Footnote 2}.

The transitional period culminated in the Constitution Act, 1982, which repatriated the Canadian constitution and introduced a constitutional bill of rights – the Canadian Charter of Rights and Freedoms. Henceforward, laws passed by our legislatures and actions of our executives would not only be required to conform to the division of powers in the 1867 BNA Act – they would also be required to conform to the Charter and other new guarantees, including the entrenchment of aboriginal and treaty rights in s. 35 of the Constitution Act, 1982.

Since it would fall to the courts to judge whether laws and executive actions conform to the strictures of the constitution, the Charter would have the effect of enhancing the role and importance of the judicial branch of governance. When citizens challenged the constitutionality of laws, the courts would have no choice but to decide on the challenges. And when these challenges succeeded, the laws would, by operation of s. 52 of the Constitution Act, 1982, be null and void. The Court, in the jargon of the day, would “strike down the law”.

The transitional period that culminated in the adoption of the Constitution Act, 1982 saw three major changes to the Canadian legal system. I have already mentioned two – the Supreme Court’s move toward a unique Canadian jurisprudence, and the enhanced role of the judiciary that came with the adoption of the Charter and other constitutional guarantees. The third development was political. In the lead-up to 1982, the government of the day took as its goal the creation of a “just society”. In an interview with the New Yorker, Prime Minister Pierre Elliott Trudeau described the goal as follows:

I’ve always dreamt of a society where each person should be able to fulfill himself to the extent of his capabilities as a human being, a society where inhibitions to equality would be eradicated. This means providing individual freedoms, and equality of opportunity, health, and education, and I conceive of politics as a series of decisions to create this society. ^{Footnote 3}

The Modern Era

The third chapter in Canada’s legal history begins with the adoption of the Charter in 1982 and carries us forward to the present. It has been a turbulent period, replete with change and marked by tension – healthy tension, I would maintain – between the judicial branch of governance and the legislative and executive branches. Some raise charges of judicial activism. Others, by contrast, describe a process of “dialogue” between the courts and the other branches of governance ^{Footnote 4}, in which laws found to be inconsistent with the constitution by the courts are re-enacted in constitutional form by the legislative branch.

The Constitution Act, 1982 confronted courts and the judges who sat on them with unprecedented challenges. The traditional judicial tasks – adjudicating on the division of powers, interpreting statutes and applying and incrementally developing the law – were supplemented by an altogether new task – putting flesh on the bones of a suite of new and broadly worded constitutional guarantees and devising constitutional remedies that made practical sense in the real world. It was hard work, intellectually and morally demanding. But beyond that, it was delicate work. It required judges to balance interests and calibrate outcomes in a way that was both respectful of the role of elected legislators and administrators on the one hand, and true to the country’s constitutional guarantees on the other.

The Governor General, David Johnston, has used the adjective “measured” in describing what is required of judges called on to interpret the guarantees of the Charter and of aboriginal and treaty rights that the Constitution Act, 1982 introduced ^{Footnote 5}. I can think of no better term. It is not for me to judge how well or poorly Canada’s judges have succeeded in this task. This much I can say: Canada’s jurisprudence on these matters and others is increasingly referred to in other courts and increasingly influential in the world ^{Footnote 6}.

Have we achieved the goal of a just society announced almost four decades ago? The answer depends on how one defines a just society. Are things perfect? Certainly not. Could there be less crime, less discrimination, less injustice? Certainly. Yet judged in terms of the former Prime Minister’s criteria, an argument can be made that Canadian society today is a more just society than it once was – more egalitarian, more respectful of rights, more open to opportunity for all. If Canada is the second best country in the world, as a recent study concludes, its justice system has played a role in achieving that result ^{Footnote 7}.

This, in brief, is the story of Canada’s judicial branch in its first century and a half. Against this background, let me turn to the issues that remain for the future.

Files for the Future

Every observer of the justice system has his or her personal roster of the issues that will confront the system in the decades to come. Here are my top five.

1. Maintaining the Balance

The most fundamental challenge for the judiciary in the years to come – one without which all other efforts will fail – is to maintain the proper constitutional balance between the judiciary on the one hand and the legislative and executive branches of governance on the other. This is a task in which all branches of governance must engage. Each branch must understand its role and respect the roles of the other.

Just as Parliament and Ministers of the Crown must respect the role of courts and their independence, so must the judiciary respect the role of the legislative and executive branches. The constitutional framework of the country and the maintenance of the rule of law demand no less.

The role of Parliament and the provincial legislatures is to make the law. They are pre-eminently suited to do this. Comprised of elected representatives of the people, they are close to the people and accountable to them at the ballot box. This said, Parliament’s power to make laws is not boundless. In a constitutional democracy like Canada, the laws must conform to the constitution. While courts cannot shrink from the task of maintaining the guarantees of the constitution, they must approach the laws adopted by Parliament and the legislatures with due deference for their preeminent law-making role and their ability to arrive at optimal solutions through debate and research. Such deference is particularly important on complex social and economic issues ^{Footnote 8}.

The role of the executive is to apply and enforce the law. The modern executive branch is a complex institution, extending far beyond Ministers of the Crown to a host of agencies and administrative bodies. Like the legislative branch, the executive branch must operate within the confines of the constitution. As with laws passed by legislative bodies, the courts may be called upon to judge whether a particular executive act or decision conforms to the constitution. And as with such laws, the courts show appropriate deference for the expertise and mandate of administrative actors and agencies.

The role of the courts, the third branch of governance, is to adjudicate disputes that arise with respect to the law, including the country’s highest law, the constitution. In doing so, the courts must respect the roles of the legislatures and the executive, and accord due deference where that is appropriate. At the same time, the courts must never shirk their role as the ultimate guardians of the constitution and the rule of law.

Maintaining the proper balance between the legislative, executive and judicial branches of governance requires constant vigilance. Tensions are inevitable, and the temptation to stymie or suppress those perceived to stand in the way is ever present. We need not look far to find current examples of countries where once independent courts have been weakened or brought to heel by the executive or legislative branches of governance. The inevitable result is to erode public confidence in the impartiality of the courts. When this happens, disrespect for the law and the rule of law cannot be far behind.

2. Judicial Appointments of Merit and Diversity

In Canada, governments – read the executive branch – appoint judges. The federal government appoints the trial and appellate judges of the s. 96 courts, as well as judges of the Federal Courts and the Supreme Court of Canada. The provincial governments appoint judges of the provincial courts, the successors to the former magistrates’ courts.

Because judges must be independent and seen to be independent, they enjoy security of tenure – if the government could sack a judge, the public would rightly fear that the judge might trim her sail to fit the government’s jib. The difficulty of removing judges for any reason short of serious misconduct or incapacity makes it vital to appoint judges of high merit and ethical standing. Once appointed, a judge may sit for many years and affect untold lives in incalculable ways. It follows that we must ensure that every judge appointed is competent and possessed of good character and good judgment. We must also assure that we appoint judges who can work in both official languages where this is required for the full and effective discharge of their duties. These requirements are sometimes cumulatively referred to by the term “merit”.

It is critical that judges enjoy the confidence of the public. Judges’ decisions have serious consequences for individuals, for the economy and for the good governance of the country.

In addition to the basic qualities that every individual judge and court must possess, appointments to the bench should reflect the diversity of the society they are called upon to judge. This is important to ensure that different perspectives are brought to the task of judging, and to maintain the confidence of all Canadians in the justice system ^{Footnote 9}. Canada, with 36% women on the federal bench ^{Footnote 10}, is viewed as a leader in the appointment of women (although we might well ask why the figure is not even higher). We fare less well when it comes to judges from minority and indigenous populations. Finding good candidates has been a challenge in the past, due to under-representation of these groups in law schools and legal practice. But that is changing. We can and should do better in the decades to come.

Canada’s current government has announced its intention to review processes of judicial appointment. This is a critical venture, at a crucial juncture in our history. The result will impact the judicial system and the country for generations to come.

3. The Right Governance Model

Courts must be independent. Yet they also must have courthouses, staff, and resources to perform the tasks essential to effective justice. The question is how to ensure judicial independence free from actual or perceived government influence, in the face of the need to look to the government for resources and support.

Canadian courts have traditionally been operated on the executive model of court administration. Provincial governments, which are responsible for court administration in the provinces under s. 92(14) of the Constitution Act, 1867, essentially run the courts ^{Footnote 11}. Similarly, much of the responsibility for the administration of the Supreme Court and the Federal courts falls to the federal executive. Administrative questions, from budgets to human resources, from infrastructure to the number of court clerks and sheriffs, and support services for judges, are ultimately in the hands of the government – the same government that is party to many of the cases that come before the courts. This is a problem.

Some provincial governments, in consultation with the judiciary, have developed informal agreements designed to set out mutual expectations and responsibilities. Governments may delegate aspects of court administration to Chief Justices, or consult to promote effective court operations. Such protocols may alleviate the conflicts inherent in the executive model of court governance. However, with governments under fiscal pressures, problems are surfacing more frequently. Judges and courtrooms may find themselves underequipped and understaffed. Technology necessary to make justice more accessible – and incidentally reduce costs in the long run – may be denied. Court fees may be pushed to levels inconsistent with ready access to the courts. In recent years, trials sometimes have been unable to proceed because of a lack of court personnel ^{Footnote 12}.

In its 2006 report titled Alternative Models of Court Administration, the Canadian Judicial Council – the body responsible under the Judges Act for promoting efficiency and uniformity, and improving the quality of judicial service in superior courts – noted widely held concerns about the shortcomings of the executive model of court administration, concerns shared in some cases by government officers. It concluded that the inability of courts to develop or administer budgets and direct court administration was having a negative impact on judicial services, and creating a situation where, in appearance if not reality, court funding and operations are at the mercy of the executive. In a world where the Crown, i.e. the government, is a party in many cases, this is not a good situation.

The common law world has witnessed a shift in recent years towards greater autonomy in court administration. Countries are moving or have moved to a judicial or judicial/executive partnership model. Recent reforms in England and Wales have increased judicial independence in the funding and management of courts through a partnership model of court administration. And since 2010, the Scottish Court Service has operated as a fully independent judge-led service without any power of ministerial direction – a system inspired by the judge-led system in the Republic of Ireland. Similarly, the U.S. Supreme Court has long enjoyed administrative independence from government, with direct congressional oversight on the court’s budgetary needs.

Scholar Graeme G. Mitchell predicts that in the twenty-first century, the administrative independence of courts will be “the new frontier in matters of judicial independence” ^{Footnote 13}. We need to look at ways to ensure the proper funding and staffing of courts, while preserving judicial independence and ensuring public accountability for moneys spent.

4. Access to Justice

The courts belong to the Canadian people, and the Canadian people should be able to access them. The most advanced justice system in the world is a failure if it does not provide accessible justice to the people it is meant to serve.

We may think we are doing well in providing our citizens with access to justice – after all, I said earlier that we had been voted the second best country in the world! But the 2015 Rule of Law Index of the World Justice Project ranks Canada only18th on the front of access to justice. As the National Action Committee on Access to Justice in Civil and Family Matters and many others have made clear, challenges abound. People avoid seeking legal advice, fearing the cost. Court proceedings are too expensive, and often take too long. We may have Cadillac justice for the elite and large corporations, but too often ordinary Canadians find themselves shut out of court or forced to go it alone without a lawyer. Courtrooms are filled with unrepresented litigants trying to navigate the system as best they can, increasing strains on the process and triggering yet further delays. Legal aid in many parts of the country is woefully inadequate.

Some, surveying the magnitude of the problems, use the word “crisis”. I remain cautiously optimistic. Canadians are taking up the challenge of making access to justice a reality. The National Action Committee has brought governments, lawyers, judges and members of the public together to study strategies for access in family and civil matters. Other groups are engaged in improving access in other areas of the law. Across the country, Attorneys Generals, the legal profession and legal academics are putting their collective shoulder to the wheel to make court processes more efficient and flexible. We have learned that “one size fits all” systems don’t work, and that ingenuity, aided by technology, goes a long way. Above all, we have learned that although the problem is polycentric and complex, we can, with effort and intelligence, make a dent in it.

I believe we must meet the challenge of providing access to justice to ordinary Canadians, if we are to maintain public confidence in the justice system. If people are excluded from the system, if they conclude it exists only to serve the interests of the elites, they will turn away. Respect for the rule of law will diminish. Our society will be the poorer.

5. Reconciliation

This is neither the time nor the place to canvas the legal issues that will occupy the judicial system in the decades to come. Yet I would be remiss if I failed to mention the overarching project of reconciliation between Canada’s indigenous peoples and other Canadians upon which our society as a whole is currently engaged. If we are not successful in this project, Canada will fall short of its potential, not only in matters of justice, but also on the economic and cultural fronts. Over the past three decades, the courts have been involved in resolving legal issues central to the project of reconciliation. The work is not complete. How the three branches of governance – legislative, executive and judicial – meet the task of finding reconciliation with the descendants of our first nations will shape the country in the decades to come. My hope is that we meet this challenge with courage and determination, in the spirit of respect and magnanimity demanded by the honour which binds the Crown in all its relations with Canada’s indigenous peoples.

Conclusion

In his book The Idea of Justice, Nobel Prize winning economist Amartya Sen argues that a just society requires three things. First, it must possess just laws. Second, it must possess strong institutions. Third, it must achieve actual justice in the lives of its citizens.

By these measures, Canada is fortunate. We possess, for the most part, just laws, created by legislative bodies committed to Canadian values. We have strong institutions – not least a judicial branch that is independent, strong and respected in Canada and abroad. Finally, through our laws, our tribunals and our courts, we pursue justice in the lives of our citizens. To be sure, we sometimes fail, but when we do, we strive to correct the situation.

Just laws, strong institutions, and actual on-the-ground justice in the lives of men, women and children – these are precious assets, upon which our nation’s future well-being depends. It is up to us to ensure that we maintain them as Canada marks its 150th anniversary.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
At the Empire Club of Canada
Toronto, Ontario
June 3, 2016