Principles and Approaches

C.R. Charlton

Honoured guests, ladies and gentlemen: After World War 11 the citizens of Newfoundland were in agonized indecision as to their future course: whether to continue the Commission Government, "go it alone" as a separate country, or become Canada's tenth province. The two referenda in 1948 showed a very close split in public opinion.

In that year, our speaker was a zesty seventeen years of age, a brilliant student at St. Andrew's College in Ontario, about to enroll in Queen's University. He was caught up in the important decision his country had to make. He had misgivings about Newfoundland joining Canada, and as you might have guessed, was not shy in saying so. I have no evidence to prove it, but I have a feeling he would not have opposed Canada joining Newfoundland as ITS first province.

In any event, the issue was resolved by a very close vote in the second referendum. I mention this because it has been said that this was Mr. Crosbie's first taste

of real politics, although both his father's family and his mother's family had been closely involved in business and politics for generations.

From Queen's he emerged with a first class honours degree in political science and economics and the university medal in those subjects. He studied law at Dalhousie's esteemed law school. He took first place in his class each year, graduating as the university's Gold Medallist in Law; he won five (tied for a sixth) scholarships out of seven available to the graduating class. After doing postgraduate studies at the Institute for Advanced Legal Studies at the University of London, and the London School of Economics, he was called to the Newfoundland Bar in 1957. He was soon involved in provincial politics and served in several cabinet posts in that province. The doubts, forebodings, and skepticism which pervaded the marriage of Canada and Newfoundland have long since been dispersed by events, and both par ties have gained much. Among the good things Canada has gained is today's honoured guest.

There is a saying that Newfoundlanders require a pinch of salt and blarney in their political mix. From the time he entered national politics in 1976, Mr. Crosbie appears to have transplanted this charming combination into the national arena. It seems to be catching on, but he will always be its Master. His reference to the Trudeau cabinet as "Disco Daddy and the hasbeens"; his innovation, while Finance Minister in Joe Clark's cabinet, of substituting a new pair of mukluks for the traditional new pair of shoes when introducing the budget; his countering of the beautiful Brigitte Bardot's attack on the Canadian seal hunt by introducing into the Commons a resolution to ban the import of French wines because "the French brutalize the grapes when they pound them with their feet" - such salty humour does, if nothing else, add some relief to the grim and disciplined world of politics, for all parties concerned and the general public.

It is now my pleasure to introduce to you one of the strongest forces in modern Toryism, our Minister of Justice, the Honourable Mr. John Crosbie.

John Crosbie

Madam President, thank you for your very pleasant introduction. Chief Justice, Judge Abella, colleagues from the Senate and the House of Commons, Rev. House - who is a fellow Newfoundlander - head table guests, ladies and gentlemen: It is a pleasure to have the opportunity to speak again to the Empire Club. And it is a pleasure, of course, to visit Toronto, where a world-shaking decision has been made recently. It reminds many people of a song that was very popular in the 1930s - "O Buddy Can You Spare a Dome?" As you know, there is a PC. leadership convention on here now and I am not going to watch any of it because I do not want to see anybody lose. The various candidates are naturally competing for the job and the candidate that Matthew Garfield is supporting wants to put a dome over all of metropolitan Toronto. Frank Miller wants to put one over the whole of Ontario. So there is quite a competition.

My introducer mentioned Newfoundland politics, and it did remind me that one time when I was not agreeing with Mr. Smallwood - every day we used to have an altercation - and one day he said that I was a "skinful of hate" and I said yes, but he was a "pop bottle of poison". They just do not seem to have the same vim and vigour here on the mainland. We Newfoundlanders, however, are normally a very polite lot which is illustrated by this story about the chap who came down from the mainland last fall to go hunting in Newfoundland and he brought his new hunting dog with him. He thought that this new mainland dog was really fantastic, and he went out hunting with a friend of mine for ducks or partridge or whatever. The first time they shot a bird the dog had to go out on the lake to retrieve the bird and to and behold, he ran over the surface of the water and did not even sink - retrieved the bird, brought it back to land again. The Newfoundlander did not say a word. The mainlander thought this was peculiar because it was quite unusual for a dog to be able to walk on water. This happened ten or twelve times during the first four or five hours and the Newfoundlander had nothing to say about it at all, so finally the poor mainlander said to his Newfoundland friend, "Have you noticed anything about my dog?" The Newfoundlander said, "Well, boy, I didn't like to embarrass ya. Sure, the poor devil can't even swim."

Well, what is the difference between Newfoundlanders and mainlanders? It used to be a story when the offshore really got going that you could tell the difference. The question was: How can you tell the difference between Newfoundlanders and mainlanders out on the oil rigs? And the answer was that you watch to see who is throwing the bread crumbs to the helicopters. The mainlanders, of course.

... the Crosbie family originated in Scandinavia and ... in the ninth century A.D. they moved to France... So i t turns ou t I am ofFrench descent...

Which reminds me, now that I am back in Toronto, that a lady from here wrote me a year ago - after the leadership convention - to tell me that she had traced our family back. We had never traced them back beyond Scotland - we figured that once you came to Scotland that was the end of the world. Anyway, this woman was interested in this subject and she had discovered that the Crosbie family originated in Scandinavia and that in the ninth century A.D. they had moved to France - Picardy. So it turns out that I am of bench descent. Then we moved with William the Conqueror and took over the U.K. in 1066 or whenever it was, and finally ended up in Scotland, in Dumfries, and we lived there for hundreds of years and then eventually we moved to Newfoundland, and so on. Well, where was she when I needed her?

It is an honour to address the Empire Club today. I last spoke to an audience at the Empire Club on November 1, 1979 when I was Finance Minister in the previous Conservative government. The title of my speech on that occasion was "Economic Outlook and Fiscal Planning". Little did I then realize that the political outlook was worse than the economic outlook and that just over a month later the government would fall, a Liberal government with an entirely different economic and political outlook would be returned to power and that I would be replaced as Finance Minister by Allan MacEachen, a finance minister that brought all his budgets up, rather than DOWN. Which reminds me that after we were defeated (I like to tell audiences this) Jane was a bit despondent, and I of course was chuckling and laughing the next day trying to pretend that it all did not matter because I knew she was going to try to get me out of politics again. I said to cheer her up, "We'll go on a trip. This is a wonderful opportunity to visit China". Which we did , and while we were in China I sent a postcard off to Allan MacEachen with a simple message. I said: "Wish you were here". Now he wishes we were there I guess. And I am reminded of that by the fact that our Ambassador to Tokyo - we visited Japan on the way back - Mr. Bruce Rankin, is here today; he was one of our great Canadian ambassadors and we had a wonderful visit with him in Tokyo.

I have often said of my tenure as Finance Minister and of the 1979 PC. government that there was time enough to conceive but not to deliver! I certainly expect that as Justice Minister I will have time to both conceive and deliver and I wish to discuss with you today how I intend to proceed in the justice area.

By the way, the most successful Justice Minister we have ever had was my immediate predecessor, Don Johnson, who went to that position at the beginning of June last year. Just three months later, justice had triumphed. The Chief Justice will be hearing this for a second time and probably before I am through he will have heard a lot of these a number of times, but my appointment as Minister of Justice can be explained on the same grounds that John F Kennedy explained appointing his brother Robert. He said: "I see nothing wrong with giving Robert some legal experience as Attorney General before he goes out to practice law." I understand that I do not even have to pass an exam to join the Bar of Ontario, so that I can make my fortune when I go out to practise law.

... The foundation is being laid for progress in vital areas which were previously marked by confrontation and dispute ...

I am pleased to stand before you reincarnated as the Minister of Justice and Attorney General of Canada in the new Progressive Conservative government that has been in office now for just over 120 days. I believe we have used our first few months wisely to take stock of Canada's situation and to consult widely with the Canadian people on how best to proceed in the resolution of major economic and social challenges which must be dealt with and resolved over the next four years. I believe this approach has the full support of the Canadian people who voted in the last election not just for a change of the party in power but a major change in the direction and approach of the federal government.

There are those who criticize the approach the government is taking and see something wrong in the priority now being given to taking stock and entering into consultations with important sectors of our society, including the provinces. But let me assure you that this period of consultation has not been fruitless. The foundation is being laid for progress in vital areas which were previously marked by confrontation and dispute. Nowhere is this more evident than in the area of federalprovincial relations. That the new approach taken by the federal government in this area can yield results is evident in the negotiations now underway between Ottawa and my own province of Newfoundland on the development of the offshore. The federal Energy Minister, Pat Carney, is making real progress toward an agree

... I believe there is widespread agreement that many of Canada's laws are outdated and do not adequately respond to present-day social needs or properly reflect the changed attitudes and values of Canadians ...ment. I hope to be able to complement the legislation implementing this agreement with separate legislation which will extend federal and provincial laws of general application to the offshore regions of Canada. This is vital justice legislation which can be achieved only on the basis of federal-provincial co-operation. The offshore negotiations demonstrate that not only the idea but also the reality of justice and a just society is inherent in the approach of the PC. government and extends those principles to disadvantaged regions and provinces as much as to individual Canadians. Certainly I have spent my first few months as Minister of Justice acquainting myself with the many and controversial issues in the justice field and determining which issues should be given priority for legislative action and other initiatives.

I believe there is widespread agreement that many of Canada's laws are outdated and do not adequately respond to present-day social needs or properly reflect the changed attitudes and values of Canadians. This is not surprising in view of major changes which have occurred and which will continue to occur in the nature of our society. The business of law reform will clearly be an ongoing task. Man-made law is an imperfect thing and we cannot hope to achieve a perfect system of law any more than we can hope for a perfect society. The challenge we face is to achieve the best that is possible and to ensure that our laws conform as closely as possible with the needs and values of today.

For example, you will recall that the present Divorce Act came into force in 1968. Yet, in the relatively few years which have elapsed since this major overhaul of our divorce laws it has become obvious that the divorce process no longer deals adequately with the dissolution of marriage in our society. I am examining, in consultation with provincial governments and other concerned groups, various proposals for reform including the divorce proposals introduced by the previous government with a view towards the introduction of new divorce legislation within the next several months. This legislation must address the question of the grounds for divorce, whether fault should be retained, the role of mediation services in the divorce process and the question of maintenance for dependent spouses and children. I take the view that our divorce laws should focus more on the consequences of divorce than on the grounds to obtain divorce itself. Of particular importance is the development of an adequate mechanism for the effective enforcement of maintenance and custody orders. Clearly decisive action is needed to resolve our present situation in which more than fifty per cent of all debtor spouses are in default on maintenance payments when studies show that eighty per cent of those in default are able financially to meet their obligations. Our goal in changing current divorce laws must be to make more humane the process by which divorce is granted, to give priority to the needs and rights of the child and to ensure that the legitimate needs of each partner are met insofar as this can be accomplished through the application of the law.

... The law must strike a balance between competing values of the freedom of the individual and the rights of the community ...

I also intend to seek the consent of my cabinet colleagues and the Progressive Conservative caucus for the early introduction of legislation to deal with the problem of street soliciting which has erupted into a major social problem and public nuisance in large metropolitan areas in Canada. It is clear that the only adequate and appropriate means to deal with this disturbing situation is through changes to the criminal code and I will be bringing forward proposed amendments in the near future. The larger question of prostitution itself and the associated issues of pornography and the sexual abuse of women and children must also be addressed. Before proceeding with legislative amendments in this area it will be necessary to complete the review of the Badgley Report submitted last August as well as the soon to be released F raser Committee Report in consultation with provincial governments and other interested groups. These problems, whose causes are deeply rooted in the nature of modern society, do not admit of easy or purely legal solutions. The law must strike a balance between competing values of the freedom of the individual and the rights of the community and this balance must reflect an underlying social consensus. That is why I will be seeking the views and support of all concerned groups in determining how government should approach these issues.

... provisions in this legislation respond to the ... concern over the needless suffering and tragedy which results from impaired driving ...

As you know, prior to the Christmas break I introduced a Criminal Law Amendment bill in the House of Commons which is now being considered by the Standing Committee on Justice and Legal Affairs. Major l provisions in this legislation respond to growing public concern over the needless suffering and tragedy which results from impaired driving. Statistics indicate that on any given night, fully twenty-five per cent of the'-' drivers on the road in Canada have been drinking and six per cent are legally impaired. It is further estimated that alcohol is involved in fifty per cent of all fatal traffic accidents and thirty per cent of all injury-causing traffic accidents. Drunk drivers take the lives of some 2,500 Canadians every year. This is a situation which cannot be allowed to continue. The solution to this problem has three aspects. The first involves the amendments now before parliament which provide for stiffer penalties for the impaired driver who injures or kills and the requirement for mandatory blood samples to correct the deficiency in the present law which allows an impaired driver involved in a serious accident to escape in certain circumstances a breath test to determine his blood alcohol concentration.

The second part of the government's response to the problem of impaired driving will be the development in collaboration with the provinces of a legal system under which serious offenders will be required to undergo treatment to reduce their dependence on alcohol. The third aspect will involve a program of public education at the community level to change attitudes towards drinking and driving particularly among our young people. I cannot emphasize too strongly that education in this field is essential. Your province has spear-headed programs of public education in schools, industry and in the community to alter attitudes conducive to impaired driving. The responsibility to reduce impaired driving must be shared by all sectors of society and real progress in influencing undesirable standards of behaviour can best be made at the community level once parliamentary approval for the new amendments is received. The Department of Justice will launch a program to distribute a community resource kit containing information and materials for community groups to organize local campaigns against impaired driving. May I say that I was very pleased and greatly encouraged to learn that over the past number of weeks, prior to and during the Christmas season, the number of persons in Ontario charged with impaired driving or other alcohol-related driving offences was significantly reduced in comparison to other years.

Looking towards the longer term I hope to bring to completion by 1987 the review of the criminal law in- f itiated in 1979 by my predecessor, Senator Jacques Flynn. The object of the criminal law review, which is being carried out by the Law Reform Commission and the Department of Justice in close co-operation with provincial governments is the major overhaul of the existing Criminal Code enacted by Parliament in 1892. Legislation resulting from this review process will address deep public concern about the effectiveness of the criminal law in controlling crime and securing the safety of law-abiding citizens. All aspects of the criminal law are under review including the range and types of criminal offences, the adequacy of existing penalties and the sentencing process in deterring offenders, the effectiveness of alternative measures less coercive and intrusive than the criminal law and the need to secure a just balance between powers granted to criminal justice agents and the rights and liberties of individuals.

Priority will also be given to the rights of victims in the criminal law - an area of public concern not adequately addressed under present law. To facilitate progress in this area I have recently approved funding for the first national meeting of the numerous independent victims of crime organizations which have sprung up across Canada in recent years. This meeting will take place in Toronto on February 10.

I also propose to seek the support of my cabinet colleagues and my provincial counterparts for the establishment of a system to provide compensation to individuals who have been wrongly convicted under the criminal law. In my view, this is not an area in which the federal government can disclaim responsibility although that has been the approach followed in the past. Our criminal justice system is based on a shared responsibility between federal and provincial governments. The system is not perfect. Mistakes can occur and when they do there should be in place a system involving both levels of government to provide deserved compensation to wrongly convicted individuals. There are problems to be resolved before such a system can be established but I am confident they will be overcome.

... Every Canadian who believes a right guaranteed in the Charter is infringed by an existing lawhas the right to challenge that lawin court...

Perhaps the most significant innovation in Canadian law since Confederation was the introduction of the Canadian Charter of Rights and Freedoms in April, 1982. In the past three years, the Charter has proven itself to be a powerful instrument of law reform in the hands of Canadians. Every Canadian who believes a right guaranteed in the Charter is infringed by an existing law has the right to challenge that law in court. The result has been a series of important decisions and precedents which will have far-reaching effect in our society. Of course the Charter is still very much a work in progress and the full meaning of many of its provisions has yet to be determined. This is certainly true with respect to those sections of the Constitution pertaining to aboriginal rights. The federal government attaches great importance to ensuring that the interests and way of life of Canada's aboriginal peoples are protected in the Constitution. The Prime Minister has given me the responsibility to represent him in negotiations leading up to the first minister's conference on aboriginal rights to be held on April 2 and 3. 1 am confident that the ongoing constitutional process to define aboriginal rights will lead to agreements between the aboriginal peoples, the federal government and the provinces and I will certainly do all I can to bring this about.

... Ofcourse the Charteris still verymuch a work in progress and the full meaning of many of its provisions has yet to be determined ...

The Charter will take on an increased prominence this April when section 15 which guarantees equality rights comes into force. Recognition of the far-reaching impact of the equality provisions of the Charter led governments to delay its coming into force for three years so that existing legislation could be changed where necessary to ensure conformity with this provision of the Charter. Questions relating to the effect of section 15 on such controversial issues as mandatory retirement, combat roles for women in our armed forces, the equal treatment of individuals under the Income Tax Act and a number of other issues must all be addressed. These matters could be left for the courts to decide and certainly the courts will have a major role to play in this area. But the implementation of section 15 will have great significance for all Canadians and Parliament has the responsibility of ensuring that section 15 is applied in a manner which properly reflects the importance attached to the value of equality in our society. I will soon address in Parliament the various issues raised by the coming into force of section 15 of the Charter and indicate how the government intends to proceed in this vital area.

In deciding to adopt a constitutionally entrenched Charter of Rights Canadians demonstrated their faith in the competence and fairness of our judicial system to protect individual rights and freedoms. Skeptics who believed judicial decisions would drain the Charter of life have been refuted. Yet there can be no doubt that the demands placed on the judicial system as a result of an increasing number of Charter cases and an increase in cases of all types before the courts have placed a heavy burden of work and responsibility on the members of the judiciary. As Minister of Justice, I am responsible for representing and defending the interests of the judiciary, which, by convention, is unable to speak for and defend itself. In fulfilling this responsibility, I intend to give priority to reviewing the recommendations of the Lang Report and to bring forward legislation in the near future respecting judicial salaries and benefits. There are, of course, some people in our main opposition party who are kicking themselves that they did not add further provision to the Bill of Rights. For example the right to Life, Liberty and the Pursuit of Patronage. But one tends to forget some of the important things when one is in power.

These are the priorities which I intend to deal with both in the short term and throughout my tenure as Minister of Justice. In deciding how best to proceed in these areas, I intend to engage in consultations with the public hopefully to achieve the broad consensus which is desirable for important changes in the existing law. In bringing forward legislation in the justice area, many difficult issues must be resolved and strong and legitimate differences of opinion reconciled. No one, certainly not the federal government, can claim to have a monopoly on all available solutions. In an increasingly complex society, the law itself has become more complex. It is no longer a subject that can be left to lawyers alone. Psychologists, sociologists and experts of every sort now have a role to play in determining how the law can best address an increasing range of complex social problems. But good law is not made by experts alone however essential their expertise may be to the lawmaking process. It is made by a government and Parliament which listens and responds to the needs and concerns of ordinary Canadians. An ultimate purpose of the law must be to serve as a unifying force in our society and as an expression of our common purpose. This end is not achieved if the law is not understood by or does not reflect the interests and values of society.

... In bringing forward legislation in the justice area, many difficult issues must be resolved and strong and legitimate differences of opinion reconciled ...

To achieve this goal, I intend to work closely with all segments of society and particularly with provincial Attorneys General who are charged under the Constitution with the administration of justice. We cannot have a credible justice system in Canada if "the law in books" becomes divorced from the "law in action". That is why federal-provincial co-operation in the justice area is essential to our federation. I believe a good foundation for this co-operative relationship, so often lacking in the past, was established successfully at the federal-provincial meeting of Attorneys General which I held in St. John's last November.

The true measure of the success of our society is the ideal we hold of justice and the effort we make to achieve that ideal. There can be no real progress in Canada unless we are committed to building a society that is freer and more just. There is a Spanish proverb which says, "the law is like a spider's web - it traps the fly and lets the hawk go free". That is not the kind of law we want in Canada. We want a justice system which is the same for all and in which all are treated fairly. That should be our objective as Canadians and certainly is my objective as Minister of Justice. As the Chief Justice will remember, I have said before, but I think it is worth repeating, whenever I feel too "holier than thou" I remember a quotation from Montaigne which I would translate as "There is no man so good who, were he to submit all his thoughts and actions to the laws, would not deserve hanging ten times in his life". Everyone here would deserve hanging at least ten times I venture to say, and Judge Abella, when I say man I mean woman and when I say woman I mean man. I should have said, "There is no person so good...", but I was giving you the quotation as it was written a hundred years or so ago. So ladies and gentlemen, I leave you with that thought. There is no one of us so good, that if the judges knew what we had been thinking all of our lives, we would not have been strung up long ago.

The appreciation of the audience was expressed by the Honourable Daniel Lang, a Director of the Club.