Chief Justice Beverly McLachlin: Canada has “Cadillac justice for the elite and large corporations”

‘Canadian society today is a more just society than it once was,’ top judge says, Supreme Court of Canada Chief Justice Beverley McLachlin delivers a wide-ranging speech pegged to Canada’s 150th birthday next year by Tonda MacCharles, June 3, 2016,

Canada’s top judge is calling for mutual respect between lawmakers and courts, more female, minority and indigenous appointments to the bench, and greater efforts to address the needs of low-income and indigenous communities.

In a wide-ranging speech pegged to Canada’s 150th birthday next year, Supreme Court of Canada Chief Justice Beverley McLachlin surveyed the evolution of the role of the courts and highlighted what she called a “healthy tension” between the legislative, executive and judicial branches of government.

The speech, coming at a time when Parliament is struggling to respond to a deadline set by the high court’s ruling that would decriminalize assisted suicide for grievously ill patients, was a remarkable defence of the role of judges.

It was also a call to action for all branches of government to achieve “reconciliation” with aboriginal Canadians, although McLachlin did not refer to “cultural genocide” as she did in controversial remarks last year about the impact of residential schools.

In a text of her noon address to the Empire Club of Canada, McLachlin placed judges squarely at the centre of former Liberal prime minister Pierre Elliott Trudeau’s project of making Canada a “just society.”

“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.”

McLachlin underscored what she called 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.”

McLachlin said the judicial job changed after 1982 when Trudeau’s government handed judges the task of assessing whether laws stack up to the Charter of Rights and Freedoms and the constitutional guarantees of aboriginal and treaty rights.

“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.”

McLachlin said it wasn’t for her to pronounce how well the judiciary has done at interpreting the constitution but said Canada’s jurisprudence is increasingly an influential benchmark for courts around the world.

First appointed to the top bench by a Conservative government, later named top judge by a Liberal government, McLachlin herself had a much publicized run-in with the previous Conservative government in 2014 which saw many of its legislative initiatives overturned by the high court.

Former prime minister Stephen Harper’s officials and then-justice minister Peter MacKay accused her of improperly calling MacKay to express concerns over a judicial appointment, which was later found to be unconstitutional by the high court.

McLachlin didn’t directly address that brouhaha.

Instead, she outlined her top five challenges for the justice system:

• the need for “balance” and due deference between judges and lawmakers;

• for judicial appointments of merit and diversity;

• for appropriate staff and resources for courts so they are not overly dependent on the executive which is often a party before the courts;

• for greater access to justice for non-elites or poorer and self-represented litigants;

• and for greater efforts to reconcile the historic grievances of indigenous communities.

The speech comes at time when the new Liberal government of Pierre Trudeau’s son, Justin, says it intends to overhaul the judicial appointment system, and when the Supreme Court of Canada itself faces a vacancy when Justice Thomas Cromwell retires after the court’s spring session.

McLachlin called the effort a “critical venture.”

Speaking of overall appointments, she said it is important to appoint judge who can work in both official languages “where this is required for the full and effective discharge of their duties.”

She said in addition, appointments to the bench “should reflect the diversity of the society they are called upon to judge” to ensure different perspectives are brought to the task of judging, “and to maintain the confidence of all Canadians in the justice system.”

She said Canada, with 36 per cent women on the federal bench, “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.”

McLachlin was scathing in her assessment of overall access to justice, noting a 2015 study that ranked Canada only 18th in the world.

“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.

“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,” she said. “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.”

[Emphasis added]

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