Recipient of the G. Arthur Martin Medal from the Criminal Lawyers’ Association

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

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Thank you for your kind words. I am deeply humbled and honoured to be recognised by the Criminal Lawyers’ Association today. It is a privilege stand before you, and to count myself among the impressive group of jurists who have been your previous honorees, many of whom are in this room. Some I know well, including former colleagues at the Supreme Court of Canada. As for others, I’ve had the pleasure of seeing their talents and commitment to criminal justice firsthand, when they have argued cases before me. All are distinguished jurists who have helped shape criminal justice as we know it in Canada today. I am humbled that you consider me worthy to join their ranks.

Arthur Martin

I never had the opportunity to meet Arthur Martin, but it seems that everyone who did has a story about it. His courtesy, ^{Footnote 1} incredible memory for case minutiae, ^{Footnote 2} and encyclopedic knowledge of the law ^{Footnote 3} are the stuff of legend. Always willing to help a younger colleague with a difficult problem, his example helped shape the strong and collegial defence bar of today.

And by all accounts he was truly brilliant. He made an impression very early in his career, and was appointed a special lecturer at Osgoode Hall Law School in 1942 at the age of 29. ^{Footnote 4} From that podium, he inspired many who would go on to become leading lights of the criminal bar. All the while, he continued a busy defence practice. He saved more than fifty people from the death penalty ^{Footnote 5} in his career – or, as a 1953 Maclean’s headline colourfully put it, “His Clients Never Hang.” ^{Footnote 6} Creative and tenacious, Arthur Martin defended the first successful automatism case in Canada, ^{Footnote 7} and virtually introduced the defence of insanity into our law. ^{Footnote 8}

Later, as a judge in Ontario’s Court of Appeal from 1973 until his retirement in 1988, ^{Footnote 9} he rewrote much of the jurisprudence in criminal law. ^{Footnote 10} He was on the Bench when the Charter was introduced in 1982, which changed criminal justice profoundly. Former Chief Justice McMurtry recounts Martin JA’s support for a two-pronged test for s. 1, eventually adopted by the Supreme Court of Canada in R. v. Oakes. ^{Footnote 11}

In addition to his judicial activities, Arthur Martin found time to help establish the legal aid certificate system, ^{Footnote 12} overhaul Crown disclosure obligations, and develop rules and procedures around plea bargaining. ^{Footnote 13} We see his influence on criminal law and practice every day.

Arthur Martin was a man of great accomplishments. What strikes me is his passion and deep respect for everyone in the criminal justice system – including his adversaries. When he set out to effect change – which, as I just described, he occasionally did – he understood that nothing meaningful could happen without consensus from everyone involved. And he knew how to get that consensus – even from groups whose interests were traditionally opposed. ^{Footnote 14} Crown and defence counsel, police, and government – who else could bring these groups together to agree on a way forward for charge screening, disclosure and resolution discussions? ^{Footnote 15} The Martin Report ^{Footnote 16} did just that, and our criminal justice system is stronger for it, ^{Footnote 17} and indeed better for his influence.

Progress in Criminal Justice

I have had the privilege of a long career in the Canadian justice system, and I am proud of what we have built. In receiving this award, I am reminded of our long journey and the commitment that all of us have to a just society and the rule of law. We’ve seen enormous steps forward, particularly with the Charter and a vast edifice of case law built on it. Our criminal justice system may not be perfect. But it is fair, free from corruption and, with rare exceptions, delivers just results. This is important not just to those of us involved in the justice system, but to all Canadians. A fair and effective criminal law system is an essential precursor for our system of justice, and by extension our rule of law and our democracy. It is the very foundation of the just society we strive for.

I am not bold enough to compare myself to the criminal law giant Arthur Martin, but we did have one thing in common. We began our legal and judicial careers before the Charter, and were thus witnesses to the profound changes it brought to all parts of the criminal justice process. Some things about those days were good – a murder trial usually took no more than a week. But others were less savoury. Whispered stories of forced confessions and wrongful detentions. Defence counsel going into Court with only a sketchy preliminary inquiry transcript and no disclosure. I, and no doubt Arthur Martin, experienced these things. Investigations today are more fair and transparent, thanks to Charter guarantees against unreasonable search or seizure (s. 8) requiring police to have warrants. Accused persons now have a right to counsel and a right to be informed of that right (s. 10(b)). Improperly obtained evidence may now be excluded, depending on the impact its admission may have on the administration of justice (s. 24(2)) – something that didn’t happen before the Charter, except in the case of involuntary confessions_._ The right to make a full answer and defence, one of the pillars of fundamental justice under section 7, ^{Footnote 18} gives accused persons access to all relevant and non-privileged evidence against them. Reverse onuses in the Criminal Code must be justified, or will be struck down as a violation of the presumption of innocence (s. 11(d)). ^{Footnote 19} We take these hard-won rights for granted in our courtrooms today.

Challenges

Let me turn to what remains to be done. Despite the great strides we have made toward a better criminal justice system, we have not yet fulfilled all of Arthur Martin’s aspirations. I want to share with you four particular challenges the criminal law system faces today, challenges which we must meet if we are to maintain a strong criminal justice system. I am thinking specifically about how we ensure access to legal assistance; how we deal with trial complexity and delays; how we ensure appropriate sentencing, particularly for indigenous Canadians; and how we reconcile the rights of the accused with complainants’ expectations.

1. Access to Legal Advice and Assistance

In preparing for this talk, I came across a description of the criminal justice system in the 1950s, which I found striking. It is from a 1988 Toronto Star article about Arthur Martin. In a passage describing the experiences that shaped his philosophy of universal, accessible justice, Justice Martin recounted that, in the 1950s, “[a] murder charge, being a capital offence, was always defended by a lawyer. But it could be rough justice for others: many charged with lesser offences simply pleaded guilty because they couldn’t afford a lawyer. One-sixth of prisoners went to trial without lawyers.” ^{Footnote 20} Despite the lamentable absence of current comprehensive statistics, ^{Footnote 21} the daily experience of judges and lawyers in criminal courtrooms tells us that access to legal advice and assistance are relevant concerns today.

Our adversarial system is built on the premise that counsel of approximately equal skill and training appear for the Crown and the Defence respectively. Its equilibrium is thrown off balance when one party is represented by competent counsel and the other is not. The unfortunate reality is that most accused persons in Canada today don’t qualify for legal aid assistance and don’t have the resources to hire a lawyer on their own. They will usually have no choice but to take their chances, hoping they’ll be able to muddle through and trusting that the system will treat them fairly. Despite all of the checks, balances, and protections people like Arthur Martin have worked over the years to build into the criminal justice system, we know that that justice doesn’t automatically roll out of the justice machine, like sausages out of an automated grinder. People charged with criminal offences need a lawyer. And the costs of lack of legal representation are not confined to the accused. Expeditious “in person” procedures may be fine for traffic tickets and minor offences. But serious criminal offences require defence counsel. Self-represented accused cause delays, increase costs, and may skew the appearance of an impartial tribunal, as the judge is forced to assist the accused. This is why criminal lawyers and the work you do are so important.

For most people caught in the criminal justice system, representation means qualifying for legal aid. Unfortunately, the bar is set so high that even people living in poverty may not qualify for legal aid. This comes with great costs – to justice for individuals, to the efficient functioning of the justice system, and to the public. I believe we can and should do better.

2. Trial Complexity and Delays

Trials have become longer and more complex. When I started practicing law in the 1970s, a murder trial took a week or less. Today, murder trials may take a month, and complex criminal trials can go on for years. There are reasons for this, many of them good: the introduction of new types of evidence, expert witnesses on technical evidence, the power to challenge breaches under the Charter. The modern criminal trial is a complex affair, and with good reason. But as Justices Moldaver, Karakatsanis and Brown reminded us with some force in Jordan, ^{Footnote 22} many actors in the justice system have fallen into a “culture of complacency” and accepted the gradual erosion of the right to be tried in a reasonable time. In other words, we have come to accept delays because “that’s just the way it is.” Arthur Martin, for one, would never be satisfied with that; he himself decried “the insidious and subtle erosion by invasions of defendants’ rights born of expediency” and was pleased to see the courts correcting these invasions of rights in the post-Charter era. ^{Footnote 23}

We all know about the problems of delay in our criminal courts. We also understand its impact on accused’s Charter rights, as well as the impact on victims and society of less urgent cases being culled, or offenders’ charges being stayed. But it is not a question of either-or. The criminal justice system must have both. It must respect Charter rights, including the right to be tried within a reasonable time, and it must at the same time deliver the justice to which Canadians are entitled. I believe our criminal justice system is making progress on resolving the dual goals of Charter compliance and effective justice. But again, we have more work to do.

3. Appropriate Sentencing, Especially for Indigenous Canadians

We all know that indigenous peoples face special challenges within the criminal system. Indigenous ideas about justice may differ radically from the adversarial and punishment-focused approaches we see in our courts, making Criminal Code procedures seem alien. Moreover, historic intergenerational trauma documented in Senator Sinclair’s recent Truth and Reconciliation Report means that many people simply are left scarred. Discrimination, stigma and loss of identity play a role. The result? Confusion, run-ins with the law – often minor to being with – escalating to criminal charges, jail, and further trauma and alienation from the person’s community. The vicious cycle that we see too often.

Without support to interrupt this vicious cycle, indigenous Canadians are tragically over-represented in the prison system. One-quarter of men and over a third of women sentenced to provincial or territorial custody are indigenous. ^{Footnote 24} In federal prisons, indigenous inmates make up almost a quarter of the population. ^{Footnote 25} These are heartbreaking statistics for a group that makes up just four percent of Canadians. ^{Footnote 26} The situation is so dire that, as Nancy Macdonald in Maclean’s Magazine has pointed out, some criminologists have begun calling Canada’s prisons the “new residential schools.” ^{Footnote 27}

The Criminal Code provides that courts must give special consideration to an offender’s aboriginal heritage at sentencing, a principle that the Supreme Court of Canada reaffirmed and expanded in the Gladue ^{Footnote 28} and Ipelee ^{Footnote 29} cases. Yet it remains difficult to implement as the detailed pre-sentence reports required to show the offender’s background may not be available, and mandatory minimum sentences may prevent judges from exercising the judicial discretion necessary to meaningfully take these factors into account.

While the Supreme Court has tried to acknowledge and mitigate these factors, the principles outlined in Gladue have not been as effective as we might have hoped. There are more indigenous people in Canadian prisons today than there were before Gladue was decided. ^{Footnote 30} It is no surprise that indigenous Canadians see the legal system as an instrument to oppress rather than protect them.

Many good things are happening. A will is emerging to tackle the problem of over-representation of indigenous people in our courts and prisons. New programs and special courts to cut the cycle of criminality are being launched. New detention centres where prisoners reconnected with their roots, and have been established with the aid of corrections officials and community members, to prepare offenders for life after release. Study after study is identifying new ways to proceed and the number of indigenous lawyers is increasing. We are tackling the issue of indigenous people in the criminal justice system in a serious way.

Beyond the issue of indigenous offenders, it is my hope that in the next years, Canada will engage in a more broad-reaching conversation about our sentencing laws. Big questions need to be asked. Whom should a national justice system incarcerate? Only those who pose a danger to society? Or anyone whose imprisonment we think will send a message of deterrence? How, with the research now at hand, can we best deter the all too common cycles of criminality? Other countries are asking these questions. I believe it is high time Canada did the same.

4. Reconciling the Rights of the Accused and Complainants’ Expectations

While the focus in a criminal trial is often on the accused, the accused is not the only actor in the criminal justice process. Complainants and victims are also part of the process. We must guarantee a fundamentally fair trial and sentencing for accused persons by upholding basic Charter rights and long-standing common law evidentiary and procedural provisions. But to maintain public confidence and the integrity of the system and fulfill the multiple purposes of the Criminal Code, we also need to reconcile these fair trial rights with the expectations of complainants and victims.

Because of the draconian consequences, the criminal law has long demanded high standards for conviction for a crime. If convicted, a person may be imprisoned for a very long time and lose that most precious thing without which everything else is worthless: his or her liberty. The potential for a wrongful conviction always waits in the wings, so the law for centuries has rightly insisted on credible evidence, a vigorous right of cross-examination, and proof beyond a reasonable doubt.

There is an obvious tension between the rights that are essential to a fair criminal trial and the expectations that may sometimes arise on the part of complainants. And the criminal law must navigate this tension. But it can only do so effectively if all sides have realistic expectations about what the criminal process can and cannot do. Complainants and witnesses need to understand what is required of them in a trial and what they can realistically expect from it. No one has the right to a particular verdict, but only to a fair trial on the evidence. Complainants have a right to be treated seriously and respectfully at all stages of the criminal process and they may have the need, if not the right, to counselling to help them get through the trial so that they emerge from the criminal justice system ready to move on to rest of their life with confidence.

I believe that we can have a robust right to a defence – with the safeguards of cross-examination and the requirement of proof beyond a reasonable doubt – without compromising fundamental principles of dignity and respect for victims and complainants. We can achieve, if we try, this fine but crucial balance. We must not divide ourselves into warring camps shouting at each other over an abyss of misunderstanding. We have to talk to each other, we have to sit down with each other, we have to make our criminal justice system for everybody. While there will always be disappointments, we are working toward achieving it.

Conclusion

Let me conclude. We have an enviable criminal justice system in Canada, built upon the leadership of people like Arthur Martin and upon the hard work, tenacity, and ingenuity of generations before us. But it is not without its challenges. Over my career at the bar and on the bench, I have seen the criminal justice system fundamentally change – and for the better. It is fairer, more compassionate. It is a system of which I am enormously proud.

But there remains work to be done. Access to legal assistance and advice; the growing complexity and length of trials with attendant delay; fairer sentencing processes; and the delicate balance between the rights of the accused and witnesses and complainants – these are all issues we need to deal with and deal with urgently. The bar, the courts and governments must unite to tackle these critical issues. We need to do this, not because it will garner headlines or win accolades, but because it’s the right thing to do. Arthur Martin would have done no less.

Justice Martin once wrote: “[a] strong, independent, and courageous bar is… essential to the existence of a free society.” ^{Footnote 31} A free society based on the rule of law, where all citizens can enjoy their rights – this has been a guiding principle of my career.

You are that bar, strong and independent. May you take for your own Justice Martin’s guiding principle – a free society based on the rule of law, where all citizens can enjoy their rights.

Thank you again for this honour.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Recipient of the G. Arthur Martin Medal from the Criminal Lawyers’ Association
Toronto, Ontario
October 28, 2017