Remarks of the Right Honourable Beverley McLachlin, P.C ...

Remarks of the Right Honourable Beverley McLachlin, P.C.

Chief Justice of Canada

Council of the Canadian Bar Association

Calgary, Alberta

August 13, 2015

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Remarks of the Right Honourable Beverley McLachlin, P.C.

Chief Justice of Canada

Council of the Canadian Bar Association

Calgary, Alberta

August 13, 2015

Good morning ladies and gentlemen. Mesdames et messieurs, bonjour. I am always

delighted to have the opportunity to address the Council of the Canadian Bar Association to speak

about issues regarding the judiciary and the administration of justice in Canada.

Le fait de vous rencontrer et d’assister à cette conférence chaque année contribue

également à affermir la relation fructueuse entre la magistrature et les avocats.

In my remarks today, I would like to speak to you about the developments at the Supreme

Court of Canada over the past year, to provide you with an update regarding changes to the

Canadian Judicial Council’s conduct process, and to share some thoughts with you about the

judiciary in Canada.

The Supreme Court of Canada

Since I last spoke to you in St. John’s, Newfoundland, the Court has welcomed a new

member. Effective December 1, 2014, Suzanne Côté was appointed to the Supreme Court of

Canada directly from the Barreau du Québec. La juge Côté fait bénéficier la Cour de sa vaste

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expérience en tant qu’avocate de premier plan devant les tribunaux et de sa connaissance

approfondie du droit civil du Québec, du droit commercial, des recours collectifs et du droit public.

Justice Côté has thrown herself into the life of the Court with her well-known appetite for hard

work. We have been absolutely delighted to welcome Justice Côté.

As you know, there have been other changes to the composition of the Court. It is with

sadness that we bid farewell to Justice Marshall Rothstein, who will retire on August 30, 2015 after

having served over nine years on the Supreme Court of Canada, which followed over thirteen

years as a judge of the Federal Court and the Federal Court of Appeal, and a distinguished career at

the Manitoba bar. Justice Rothstein has served on the Court with great distinction and has made

invaluable contributions to the Court and to Canada. He is a wonderful colleague and friend, who

will be greatly missed.

We welcome Justice Rothstein’s successor, Justice Russell Brown, who has been

appointed to the Court effective August 31, 2015. Justice Brown has been elevated from the

Alberta Court of Appeal. He comes to the Court with a rich background as a practitioner and law

professor. During his time at the Bar, Justice Brown practiced in the areas of commercial law,

medical negligence, personal injury, trust, estates, and competition law. His academic work has

focused on tort law, property law and civil justice. We are looking forward to Justice Brown’s

contributions to the Court.

The Court has had a productive year. In 2004, the Court received 558 applications for leave

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to appeal. We granted leave in nine percent of cases. Sixteen notices of appeal as of right were filed

with the Court. We heard 80 appeals and rendered judgments in 77 cases. In 79 percent of cases,

the Court was unanimous.

These statistics only tell part of the story. Notable appeals that were decided over the last

year include:

Carter v. Canada (Attorney General),1 in which the Court held that s. 241(b) and s. 14 of

the Criminal Code violate s. 7 of the Canadian Charter of Rights and Freedoms insofar as

they prohibit physician-assisted death for a competent adult person who clearly consents to

the termination of life and has a grievous and irremediable medical condition that causes

enduring suffering that is intolerable to the individual in the circumstances of his or her

condition.

R. v Nur and R. v. Charles,2 in which the Court struck down the mandatory minimum

terms of imprisonment in s. 95(1) of Criminal Code for possessing loaded prohibited

firearms or with readily accessible ammunition nearby because they were cruel and

unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms.

Saskatchewan Federation of Labour v. Saskatchewan,3 in which the Court held that the

right to strike is protected as part of freedom of association under s. 2(d) of the Charter.

1 [2015] 1 SCR 331.

2 2015 SCC 15.

3 [2015] 1 SCR 245.

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And of particular interest to the legal profession, in Canada (Attorney General) v.

Federation of Law Societies of Canada4, the Court held that the provisions authorizing the

search and seizure of the records of lawyers and law firms in the Proceeds of Crime

(Money Laundering) and Terrorist Financing Act violated s. 8 of the Charter, and that the

provisions requiring lawyers to gather and retain certain information regarding the identity

of those on whose behalf they pay or receive money interferes with a lawyer’s duty of

commitment to the client’s cause contrary to s. 7 of the Charter.

Some notable appeals remain under reserve:

Boutet c. Sa Majesté la Reine et Caron c. Sa Majesté la Reine,5 où l’on demande à la

Cour si un droit constitutionnel exige l’adoption des lois albertaines en anglais et en

français; et

A group of cases concerning the meaning of “people smuggling” in the Immigration

and Refugee Protection Act.6

The Court’s upcoming autumn session promises to raise a number of important questions.

We have 25 appeals scheduled in October through December. Notable cases include:

4 [2015] 1 SCR 401.

5 Court File No. 35842.

6 Court File Nos. 35677, 35685, 35688, 35388 ad 35958.

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Daniels et al v. Her Majesty the Queen,7 which asks whether Métis and non-status Indians

are “Indians” for the purpose of s. 91(24) of the Constitution Act, 1867, and are thus under

the jurisdiction of the federal government.

L’affaire Procureur General du Canada c. Chambres des notaires,8 soulève la question de

savoir si le régime des demandes péremptoires établi par La Loi de l’impôt sur le revenu9

est conforme à l’article 8 de la Chartre canadienne lorsque le ministre s’adresse au notaire

ou à l’avocat du contribuable afin d’obtenir des documents ou renseignements qui

concernent le contribuable.

World Bank Group v. Wallace et al,10

which asks a number of questions concerning the

principles that govern the immunity of international organizations, and whether the

Canadian courts have jurisdiction over the World Bank Group, specifically whether

Canadian courts can compel its officers and employees to testify and produce internal

documents.

Reflecting on the past Court year, I can report that the Supreme Court of Canada remains

highly productive and independent, and continues to enjoy a high level of confidence among



9 L.R.C., 1985 c. 1, par. 231.2(1), art. 231.7, par. 232(1).


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Canadians. Cette réflexion sur l’année judiciaire qui s’achève me permet de dire que la Cour

suprême du Canada reste très productive et indépendante, et qu’elle conserve à un niveau élevé la

confiance des Canadiens et des Canadiennes.

Judicial Conduct

Let me now turn to the Canadian Judicial Council, which I serve as Chairperson. The

Council is created under the Judges Act with the mandate to promote the efficiency, uniformity,

and accountability, and to improve the quality of judicial service in the superior courts of Canada.

One of its most important functions is to independently review the conduct of judges, which is

essential to maintaining the public’s confidence in the administration of justice in Canada.

Canadians have consistently expressed a high degree of confidence in their judges. Part of

preserving public confidence in the judiciary is ensuring that any concerns about a judge’s

professional and personal conduct are heard and determined expeditiously and fairly.

Two years ago in my address to the CBA, I expressed my view that the Canadian Judicial

Council could improve its system for reviewing the conduct of judges. I am pleased to report that

the Council has now implemented its most substantial reforms to the conduct process since its

inception in 1971.

Our goal has been to improve the efficiency, effectiveness and fairness of the conduct

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process. The Council consulted widely with the public at large, and with specific stakeholders,

notably the Canadian Bar Association; the Minister of Justice and Attorney General of Canada, the

Honourable Peter MacKay; and the Canadian Superior Courts Judges Association. These

consultations were essential to obtaining the range of views concerning the conduct process and

for considering their thoughtful suggestions for reform.

Following these consultations, the Council adopted a number of measures to improve the

conduct process, including the following:

Providing more detailed information to complainants about the review of their

complaint.

Eliminating confidential reports by outside counsel, so that judges subject to a

complaint receive all information gathered during the review process.

Streamlining the conduct review process.

Allowing the Judicial Conduct Committee to express concern to a judge and

provide constructive feedback, if warranted, when complaints are dismissed.

Inviting lay persons to participate on Review Panels, which decide whether a

complaint should be referred to an Inquiry Committee.

Replacing independent counsel with counsel who are engaged and directed by the

Inquiry Committee, in keeping with the inquisitorial nature of the Inquiry

Committee.

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These measures, taken together, will improve the conduct process.

Let me take this opportunity to thank the CBA once again for its thoughtful and

constructive submissions. Your views and those of other stakeholders were essential to the

Council’s work.

The Judiciary

We are fortunate to enjoy a society with a vigorous democracy, a robust commitment to the

rule of law and a strong respect for fundamental rights. The judiciary is one of the pillars that

upholds these features of Canadian society.

As the third branch of government, the courts provide a peaceful forum for the resolution

of disputes between private citizens, and between citizens and the state. A society with a healthy

rule of law must provide courts as a means “for resolving, without prohibitive cost or inordinate

delay, bona fide civil [and public law] disputes which the parties themselves are unable to

resolve”11

. Put simply, people need to be able to access the courts to have their rights and liabilities

determined. Without access to justice, as the Supreme Court of Canada recently held, “the rule of

law is threatened”.12

I am proud of the quality of justice dispensed in the provincial and federal courts in

11

Tom Bingham, The Rule of Law (London: Penguin, 2011), p. 83. 12

Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, para. 26.

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Canada. Although more can and should be done to reduce costs and delay in our courts, the

judiciary is in good order. S’il reste encore plus à faire pour diminuer les frais et les délais devant

nos tribunaux, la magistrature est en bon ordre. Whether presiding over a criminal sentencing, a

child custody case, or a dispute over a business, our judges serve the public with dedication and

integrity, in the face of significant challenges.

The quality of our justice system depends on a highly-qualified judiciary, broadly

reflective of Canadian society, which is independent and impartial. Independence is freedom

from the influence of “any person or body, which can exert pressure on the judiciary through

authority under the state.”13

Impartiality is “the requirement of the judge to approach the case to be

adjudicated with an open mind.”14

Litigants and the public must be confident that a judge is not influenced by irrelevant

considerations to favour one side or the other. But as the Supreme Court of Canada recently

observed, an open mind does not mean an empty mind.15

“Impartiality thus demands not that a

judge discount or disregard his or her life experiences or identity, but that he or she approach each

case with an open mind, free from inappropriate and undue assumptions.”16

Having judges on the Bench with diverse life experiences and views is a strength. As my

predecessor Chief Justice Bora Laskin remarked:

13

R. v. Lippé, [1991] 2 SCR 114 at p. 138. 14

Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 55. 15

Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 33. 16

Ibid. at para. 36.

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The judges who administer [the common law] represent in

themselves and in their work a mix of attitudes and a mix of

opinions about the world in which they live and about the society in

which they carry on their judicial duties. It is salutary that this is so,

and eminently desirable that it should continue to be so.17

Canada’s judges strive to do justice in the case before them, according to the law.

Canadians can be confident that when judges don the robes of office, they approach their duties

with independence and impartiality.

Occasionally we hear that the judiciary is “unaccountable” because judges are appointed

and because they hold office during good behaviour until the age of 75. This concern is misplaced.

Judges are accountable to the public every day for the duties they carry out. Public accountability –

the responsibility to answer for one’s conduct – is brought about in three important ways: open

courts, reasoned decision-making, and appellate review.

First, justice is transparent. The open courts principle demands that justice must not only be

done, but it must also be seen to be done. Judges perform their functions in the public eye.

Anyone can walk into a courtroom in this country and observe judges as they render justice in

public. How judges perform their duties is therefore constantly open to healthy scrutiny under the

17

“The Common Law is Alive and Well — And, Well?” (1975), 9 L. Soc’y Gaz. 92, at p. 99.

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watchful eye of litigants, the media and the public at large.

Secondly, judges must give reasoned decisions. These reasons are available to all, not just

the parties before a court. Judges must explain and justify a decision based on the facts and the law.

As the Supreme Court of Canada explained in R v. Sheppard:

There is a general sense in which a duty to give reasons may

be said to be owed to the public rather than to the parties to a specific

proceeding. Through reasoned decisions, members of the general

public become aware of rules of conduct applicable to their future

activities. An awareness of the reasons for a rule often helps define

its scope for those trying to comply with it. The development of

the common law proceeds largely by reasoned analogy from

established precedents to new situations.18

Finally, accountability is assured through appellate review. First instance judges are

regularly reviewed by appellate courts to ensure that their decisions are free of error. And the

Supreme Court of Canada sits at the apex of the judiciary as the ultimate guarantor of the rule of

law.

The combination of open courts, reasoned decision-making, and appellate review ensure a

18

[2002] 1 SCR 869 at para. 22.

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very high degree of public accountability in the judicial function. Ensemble, la publicité des débats

judiciaires, la prise de décisions motivées et l’examen des décisions en appel donnent l’assurance

d’un degré très élevé de responsabilité publique dans la fonction judiciaire.

In closing, let me add that an independent and strong judiciary depends in no small part on

an independent Bar that is engaged in upholding the rule of law and ensuring access to justice for

all. For your tireless work in this regard, I thank you. En terminant, permettez-moi d’ajouter

qu’une magistrature indépendante et forte repose dans une large mesure sur un Barreau

indépendant, dédié au maintien de la suprématie du droit et soucieux d’assurer l’accès à la justice

pour tous. Pour le travail inlassable que vous accomplissez à cet égard, je vous remercie.

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