Observations on Public Service

Head Table Guests

Robert Dechert, Partner, Gowling, Strathy & Henderson and a Director, The Empire Club of Canada; Johnathon Bird-Thompson, Grade 10 Gifted Program student, Danforth Collegiate and Technical Institute; Shaughnessy Cohen, Liberal Member of Parliament; Nigel Campbell, Partner, Blake, Cassels & Graydon; Mary Ann Sanderson, President, The Advocates' Society; Glenn Burnstead, Senior Vice-President, General Counsel and Secretary, Toronto Dominion Bank; Pat Fleet, Member, Central United Church; The Hon. Mr. Justice Joseph Potts, C.D., Supreme Court of Ontario and a Past President, The Empire Club of Canada; J. Edgar Sexton, Partner, Osler, Hoskin & Harcourt; The Hon. Roy McMurtry, Q.C., Chief Justice of Ontario Court of Justice; Jan Dymond, Vice-President, ZED Communications and a Director, The Empire Club of Canada; Peter Brent, Vice-President, Legal Affairs and Corporate Secretary, MDS; Eleanore Crook, Partner, Fasken Campbell Godfrey; Randy Echlin, Partner, Borden & Elliot; Kenneth Whyte, Editor, Saturday Night Magazine; The Hon. George Elliot Harre, Chief Justice of the Cayman Islands; and Tom Heintzman, President, Canadian Bar Association.

Introduction by John Campion

Pushkin's Death by Duel

By 1789, the duel, as an honourable estate by which men and even women settled matters of personal honour, had receded into what many thought was a welcome and permanent obscurity.

Alas, its decline was only a prelude to a virulent recovery brought on by the French Revolution and the subsequent militarization of European and North American society that took hold from Napoleon Bonaparte's ascendancy in 1799 until his final defeat in 1815.

While official society condemned it, churches opposed it vehemently and law codes did not distinguish between death by duel and willful murder, the duel's rebirth in Paris soon spread to the United States through New Orleans, into Canada, into Britain, Ireland, Germany, Russia and even the Papal states where in one 10-year period 2,759 duels were officially recorded.

Duelling was not confined to the military. Heads of State, politicians, students, lawyers, journalists, poets and even doctors and judges fought to the death with pistols, swords, fists, daggers and in the American backwoods, even rifles.

Alexander Pushkin, Russia's national poet, was killed in a duel in 1837.

In Britain, duels were fought by fully six Prime Ministers in a row--often to settle matters arising from political actions, words spoken in Parliament and cabinet manoeuvring. In one fatal case during an election campaign, a duel was fought over a complaint by one candidate that the opposition had trespassed on the land of a voter known to be a supporter of the first.

In the United States, Andrew Jackson fought many duels, killed several opponents and thereafter still got elected President. Governor James Hamilton of South Carolina was involved in fully 14 duels, wounding his opponent on each occasion.

Some of the most violent contests though were preserved for those between lawyers and judges.

Edinburgh lawyers took a particular fancy in fighting duels over court room exchanges and printed criticism. But Ireland was the worst.

Daniel O'Connell was a notoriously abusive barrister. In his heart, he claimed he was against duelling but it was the fashion of the Irish Bar. During his career, he caned his own cousin in open court, called his best friend a liar, had a volume of statutes thrown at his head and got kicked in the shins by an aggrieved witness--all of which led to duels--some of them fatal.

And, my Lords, lest you think judges were exempt, a High Court Irish Judge--Lord Norbury--was reputed, in a series of duels, to have "shot himself all the way up to the Bench."

It took an English cabinet minister in the 1830s, Sir Robert Peel, to intervene. Using all means at his disposal, Robert Peel, who gave his nickname "Bobbie" to the London police force he created, used legislation, local magistrates and his police force to bring a decline in the practice of duelling in England. Slowly, the rest of the civilized world followed Britain's example.

The Minister of Justice and Attorney General for Canada, has something in common with Robert Peel and the beginning of the end of duelling.

He has born the brunt of challenges to civilized behaviour in the guise of violent crime using guns. He chose as his response and that of the Chretien government, a bill on gun control.

The government knew that there would be serious and sustained opposition to this legislation. They knew that the legislation had its limits in terms of criminal dealings in fire arms. But, like Sir Robert Peel, the Minister chose all the means at his disposal to put forward a bill before Parliament that would make the abuse of firearms not only less possible, but also morally unacceptable in our society. Through the government's efforts, they have moved to make our society a safer, more civilized place.

Before his rise to high political office, Allan Rock was a widely respected barrister of 20 years experience in the courts and before tribunals. He was a bencher and ultimately Treasurer of The Law Society of Upper Canada, the governing body of Ontario's 25,000 lawyers.

In 1993, he was elected as the Member of Parliament for Etobicoke Centre. Since then he has earned the respect and high regard of all Canadians for his respectful demeanour and many initiatives running from drunkenness as a defence to the enforceability of maintenance awards. Please welcome The Honourable Allan Rock.

Allan Rock

I should begin by thanking John Campion for his very kind and generous introduction.

I am delighted and honoured to be included in your addresses in the Law and Society Series. I feel very much at home speaking in a place so close to my old stomping grounds, and in the company of so many good friends. As many of you know, I spent 20 years practising law a few blocks from here. I learned a lot in that period about the relationship of law to society from the vantage point of a courtroom lawyer.

I would like, with your permission, to spend a few minutes today reflecting upon some of the things that I have learned during the period since I left practice and entered public life. I do not wish to pretend that I have yet learned enough to speak with any authority. As I reflect, I will remember the observation attributed to George Bernard Shaw. After having met and spoken with a young man, Shaw was heard to say, "He knows nothing. And he thinks he knows everything. That points clearly to a political career."

My first observation deals with the nature of my portfolio.

I have been in my present job for about 17 months now. It is the most demanding one I have ever had--and, without a doubt, the most interesting. This is partly because that is the nature of the assignment, but also because this is a time of tremendous activity and change.

When I was sworn into cabinet, it was to serve as both Minister of Justice and the Attorney General of Canada. My position was summed up quite well in a recent cartoon in the New Yorker magazine. A man with two heads is standing at a cocktail party, good naturedly answering the obvious question. The caption reads: "Actually, I wear two hats."

Well, I wear two hats. As Minister of Justice, I am the cabinet member responsible for the framing of policy relating to the justice system, and for developing new legislation in relation to that system. On the justice side of the agenda, the issues which have involved me in policy discussions range all the way from child support to gun control; the use of DNA evidence in the courtroom to amendments to the Young Offenders Act; sentencing reform to changes in the Human Rights Act; euthanasia and assisted suicide to Criminal Code amendments dealing with prostitution.

As Minister of Justice, I am also responsible for certifying that all legislation brought forward to Parliament by any department of the government is in compliance with the Constitution. While Parliament is in session, a large part of my time is spent on the floor of the House, in the midst of the political fray.

My second role, as Attorney General of Canada, is related to, but is quite different from the first. It involves my work as the Chief Law Officer of the Crown, responsible for the government's interests in litigation. I initiate prosecutions on behalf of the federal government and defend proceedings that are commenced against it.

My role as Attorney General is apolitical, by definition. Decisions about whether to prosecute, or to stay a prosecution, are not reached in the collegial, cabinet style: they must be made by me alone, independent of political considerations.

The position of the Attorney General as an even-handed law officer who sits in a political cabinet has preoccupied authors and commentators over the years. In recent times, we have had splendid examples of Attorneys General handling that difficult portfolio superbly. One of the pre-eminent Attorneys General of our time has been the Honourable Roy McMurtry, present Chief Justice of the Ontario Court of Justice, who served as Attorney General of Ontario for 10 years, and through a variety of very challenging issues. Another Ontario Attorney General of extraordinary skill was Ian Scott, who also wrote and spoke insightfully about the nature of the position.

In lectures that he gave in Toronto in 1989, Ian emphasised that an independent Attorney General must bring to' policy making in government a particular concern for principle, for constitutionalism and for rights. As Attorney General of this province for five years, Ian Scott provided a living and vivid example of the ideal that he described: he was an Attorney General who focused issues of principle on questions of politics.

In my own work, I do my level best every day to remember his advice and to live by his example. Nor is there any shortage of cases from which to accumulate experience, whether they be criminal prosecutions, the determination of Aboriginal land claims, interventions in constitutional cases, or applications for mercy by persons convicted in the criminal courts.

All of which is to say that my education in the law has been continuing at my new address.

My second observation relates to the respect I have developed for the immense complexity of the political system.

I can remember wondering from my place in practice why it took so very long for governments to get things done. With a majority in the Legislature, can needed reforms not simply be enacted? I can now offer direct evidence from my personal knowledge that things are not quite as simple as they appear.

I am not suggesting that there is any lack of complexity in the life of a trial lawyer, but there is a difference in texture. In the practice of law, by my experience, the process is reasonably linear. You define the problem, or your client's. You postulate a solution or an outcome. And you devise a strategy for getting from one point to the other.

I have found that working through the agenda of the Minister of Justice isn't entirely that direct. To get an initiative rolling, whether of new legislation or new policy, you cannot simply pitch right in and get the job done.

The first challenge upon coming into office is to establish priorities. In my case, I was assisted by a written platform on which the government achieved election. The famous "Red Book" provided part of the script as I worked in the early months to list the jobs in order of priority. I received enormous help from the Department of Justice itself. The Department is filled with excellent lawyers with a keen sense of the agenda.

One of the first lessons that I learned is that priorities cannot be established in such a tidy and orderly way. Picking the next project is not always the prerogative of the minister, or even of the government. As soon as you believe that you have a settled process in mind, along will come a judgment from the Supreme Court of Canada, or perhaps a request from a client department of government for an urgent amendment, a sudden labour dispute in an essential service, or even the arrival of a foreign fishing fleet, and the neatly listed priorities are suddenly cast aside in favour of the emergency of the moment.

But assuming the priorities can be pursued in the order in which they are established, the first major task is to begin construction from the ground up--on the firm base of public understanding and support. That means consultation. Depending on the issue, consultation may involve anything from cross-Canada public hearings to publishing a discussion paper, or quiet meetings with expert groups on specialised subjects. My own preference, particularly in matters of complexity, is to be personally involved in the consultations. While that slows the process down, it is of enormous value to me. It is only through direct involvement in the exchange of ideas and in listening to the views of others that I can develop a sense of confidence that I understand the issues and that the solution we eventually decide upon is the right one.

It is, of course, possible to overdo it. I well recall the day in Question Period when the Justice critic from the Opposition, complaining about lack of action, called me "the Minister of Consultation."

The purpose of consultation must always remain clear. To consult is to learn, and to become sensitive to all perspectives, so that whatever decision is made, the government will act with the knowledge of how all relevant interests will be affected, after having given respectful consideration to those interests. The point is not to do what Allan Rock personally or any other incumbent would prefer to do, the task is to serve the public interest.

Unfortunately, that term is more subjective than scientific. As you can see on the lawns of Parliament Hill on any given day, there are dozens of articulate advocacy groups with their own definitions of the public interest. It is part of the chemistry of democracy to try to reconcile those views and those interests. Where they cannot be reconciled, government must decide and then take the responsibility for the decision.

The process of consultation must also involve the Party's caucus. Members of the cabinet must never forget that the power of the government depends entirely upon the support of our caucus colleagues. Their views and their values must be acknowledged and respected. Caucus is an outstanding source of political intelligence and shrewd practical advice. Caucus is comprised of 177 members of Parliament from right across Canada. They are a diverse and varied group. It is not at all surprising that they would hold a wide range of views on the controversial issues that confront the justice portfolio.

While we do have our differences, all Liberal members of Parliament share the principles of the Party and of its platform. There is no reason to expect unanimity on any given question. Working with caucus committees toward the development of policy is an essential part of the process.

Policy proposals must also be thoroughly discussed in cabinet: Does the initiative fit in with the government's overall priorities? Are there regional or international implications that must be considered? If the money to fund the project has to be found through reallocation, why should one project be preferred over another?

When the policy has a grounding in public discussion, the support of caucus and the approval of cabinet, the legislative process itself begins. The bill is introduced, and the House debates approval in principle at second reading before going to Committee for more detailed hearings. The timetable very much depends on House business generally. As an example, I had hoped that the Firearms Bill would be at Committee by now. The emergency legislation with respect to the rail strike and the debate and vote on the budget resolutions have delayed the process, so that Bill C-68 on firearms will probably not get to the Committee before early April.

My third observation relates to the significance of a theme that appears and reappears in almost every policy issue that I face. That theme is the balancing of individual rights against collective interests.

Consider the varied ways in which this crucial theme arises in my current work:

• Canadians are worried about violent offenders committing other crimes if the offenders are released from jail after serving their terms. But in dealing with that concern, we must avoid arbitrary detention, double jeopardy and vigilantism;

• Canadians want to underscore the principle of accountability in the criminal law, even for those who voluntarily intoxicate themselves, while at the same time recognising that intoxication can deprive an individual of the capacity to form a specific intent in the criminal law;

• Canadians want to assure an accused person the right to full answer and defence, but we must also permit victims of sexual assault to seek treatment and counselling with the reasonable expectation that their legitimate privacy interests will be protected.

In our democracy, as in every democracy based on majority rule, there is continually a balance to be achieved. One aspect of that challenge is to ensure that the many do not override the rights and freedoms of the few. Another is the protection of the individual from the exercise of arbitrary, illegal power by the state. But a third involves the preservation of the common good, sometimes at the expense of the individual's rights in the absolute.

How, then, should government approach the task of striking the proper balance?

In Canada, we have a mechanism that is uniquely designed to achieve that purpose: the Charter of Rights and Freedoms. It is our instrument for maintaining that balance, year by year, case by case, decision by decision.

There were those who said in 1982 that we didn't need a Charter to affirm the rights of the person in Canada. There are some who say that still. Among the thousands of letters that I receive every month are many that call upon me--sometimes angrily--to revoke the Charter and to roll back the court decisions founded upon it.

To those people, I respond that the Charter does not erode our way of life, it enriches it. The Charter does not undermine our values, it enshrines them. And in so doing, the Charter enables our judges to do exactly what the critics demand: to assess and interpret our laws according to a clear statement of what we believe in as Canadians.

It is for those reasons that I cherish the Charter as a guarantor of dignity. I value it in particular for what it puts in writing. The rights of the individual in a democratic society are too important to be the subject of a handshake agreement with the state.

But the genius of the instrument is that it is more than a simple recitation of individual rights--it entrenches as well the collective interest.

From its very opening passages, the Charter recognises the need for balance and provides a mechanism for achieving it. Section one provides that the rights and freedoms guaranteed by the Charter are "subject only to such reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society."

Our Charter is unique in containing this specific balancing provision. It expressly recognises that organising a free and democratic society sometimes means preferring the interests of the collective over the rights of the individual.

It seems to me that this has turned out to be one of the advantages in having this country wait for 115 years after its birth before writing its own Constitution: more than a century of living and of learning went into the process.

And so, as I reflect upon our system of justice, upon the constant tension between the individual and the collective, I reaffirm my confidence in and my commitment to the Charter and its principles as the highest expression of our values and the surest measure of our laws.

The last observation that I would make has to do with what law alone cannot achieve--and the need for us to come to grips with the limitations of the criminal justice system.

I am often confronted in Question Period by reference to a horrific crime, and a demand that I act immediately to change the law to prevent such a thing from ever happening again.

Punishment and deterrence are obvious and legitimate purposes in the criminal law. Every element of our criminal justice system, from enforcement to prosecution to penalties, must send the message loud and clear that crime, and especially crimes of violence, will not be tolerated.

In keeping with that principle, our government has introduced amendments to

• double the maximum sentence for first degree murder under the Young Offenders Act;
• require that certain serious offenders serve their full sentences before release;
• introduce the longest mandatory minimum penitentiary terms in the Criminal Code for crimes of violence committed with a firearm.

I hope that the record demonstrates our unconditional commitment, in dealing with serious crimes of violence, to punishment that is certain and significant.

But the legislation we have proposed also reflects the principle that for crime without violence, jail should be the last resort. We have said that in so many words, both in the Young Offenders Act amendments and in our sweeping reforms to the sentencing process in the Criminal Code.

And we have said something else. We have emphasised that in the long run, the surest protection for society lies in efforts at crime prevention. The criminal justice system by itself cannot make a society just. It is incapable of doing that because it deals with effects and not with causes. By the time the justice system becomes engaged, people are in trouble, charges have been laid, harm has been done. But when the goal is crime prevention, the things we do within the system must be part of a wider strategy pursued by society as a whole.

Clemenceau said that war was too important to be left to the generals. Well, crime prevention is too important to leave to the lawyers, or to ministers of justice.

Making the streets safer has as much to do with literacy as it does with the law; with health as with human rights, with living standards as with sentencing.

Some people like to talk about simple solutions like "three strikes and you're in." I believe that we have to go beyond the slogans to the substance of the issue. We ought to prefer logic to rhetoric in order to get past the symptoms and address the sources of crime.

If harsher laws, longer sentences and bigger prisons were the answers to community safety, then the United States of America would today be a nirvana. And although putting up prisons is now one of the main objects of state spending in America, it is already clear that a society cannot build its way out of the crime problem.

If crime prevention is going to be effective, it has to be based on linkages between law enforcement and social agencies; between the educational system and families; between community workers and health professionals.

Successful crime prevention means communities taking responsibility for themselves: instead of wringing our hands, rolling up our sleeves and doing our part to make things better.

Crime prevention means recognising connections between the crime rate and the unemployment rate--between the unsupervised access of young people to movies saturated with violence, and the way they act toward one another. Between the way a kid behaves at school and the question of whether he has a hot meal that day.

In the final analysis, crime prevention has as much to do with Paul Martin in Finance, with John Manley in Industry and with Lloyd Axworthy in Human Resources Development as it does with Allan Rock at Justice.

We are working slowly, but surely, at the federal level to act on these principles. Among other things, we have created a National Crime Prevention Council in order to put the subject on the national agenda for the first time. We have asked the National Council to develop a strategy for Canada as we seek to address those linkages and to develop an integrated approach to community safety.

It was Aldous Huxley who observed that "the exasperating thing about life is that it must be lived forwards, but it can only be understood backwards." This afternoon I have touched on some of the things that I have understood over the last year and a half. Some of the lessons that I have learned about the process of the law from the vantage point of Parliament Hill were not so obvious at King and Bay.

I am often asked whether I am glad that I reacted to my mid-life crisis by leaving private practice and running for public office. My answer, in every case, is an unqualified "yes." It is an extraordinary privilege to serve in Parliament. There is unmatched excitement in the work of the cabinet. Life has assumed an exhilarating pace, filled with absorbing work of great variety and remarkable challenge. Simply put, I believe that I have the best job in the country. I have learned a great deal, and I have so much yet to learn.

I have enjoyed the opportunity to spend some time today in familiar territory, with such good friends, and I thank you for allowing me to join you this afternoon.

The appreciation of the meeting was expressed by Tom Heintzman, President, Canadian Bar Association.