Good Justice: A Global Commodity

Head Table Guests

Heather C. Devine, Associate in Litigation, Fasken Martineau DuMoulin LLP and Director, The Empire Club of Canada; Rev. Dr. John Niles, Victoria Park United Church; Neil Lacroix, Grade 12 Student, Leaside High School and Winner of the Rotary Club ""Junior Prose"" Contest; Dorothy Quann, General Counsel, Xerox Canada; Wendy Kelly, Vice-President and Associate General Counsel, BMO Nesbitt Burns Inc.; John A. Campion, Partner, Fasken Martineau DuMoulin LLP and Past President, The Empire Club of Canada; Ronald G. Slaight, Q.C., President, Advocate's Society; Robert Armstrong, Treasurer, Law Society of Upper Canada; and Malcolm J. MacKillop, Partner, Borden Ladner Gervais LLP and Director, The Empire Club of Canada.

Introduction by Catherine Steele

It is my privilege to welcome our guest speaker, The Right Honourable Madame Chief Justice Beverly McLachlin.

One of the first things you learn as a student of political science are the three levels of power in the Canadian system-Parliament, the Senate, and the Judiciary. While political news and the carryings-on of politicians tend to dominate news coverage, we often forget the significant role played by our legal system and in particular the Supreme Court of Canada whose decisions influence and set policies for the nation, causing laws to be struck down or rewritten.

Rulings in landmark cases such as native land treaties, abortion, and the recent Latimer case have changed the course of Canadian history. For most Canadians, I dare say, the Supreme Court is an unknown entity. But the Canadian motto of ""peace, order and good government"" (although one may question how much of the latter we actually have in Canada) verbalises our value of justice, order and lawfulness. We don't necessarily realise how fortunate we are until news coverage highlights life in other parts of the world where lawlessness is the order of the day.

Our guest today plays a special role in Canada's justice system. After articling and practising law in Edmonton in the late 60s and early 70s, Chief Justice moved to B.C. where she was called to the bar. From 1975 to 1981 and in addition to her practice, she was also an Associate Professor at the Faculty of Law at the University of British Columbia. In 1981 she was named to the Supreme Court of British Columbia and was named Chief Justice of that Court in 1988. In 1989, she was sworn in as the third woman to serve as a Justice of the Supreme Court of Canada. And on January 7, 2000, she became Chief Justice of Canada.

When I became President of the Empire Club last May, this luncheon was one of the first that I arranged. As a female president of dare I say, a club that has been known to be overly represented by men (perhaps not unlike the legal profession), I have been looking forward to this luncheon for a long time. One of my favourite expressions is ""Women Rule"" and with today's guest, this is certainly true.

Ladies and gentlemen, please welcome The Right Honourable Madame Chief Justice Beverly McLachlin to The Empire Club of Canada.

Beverley McLachlin

Today I would like to share with you some thoughts on justice-as you might expect of a Chief Justice. However, my focus is not trained, as it usually is, only on Canada. It aims rather at the world scene. Hence my title, ""Good Justice: A Global Commodity.""

My theme may be simply stated: Good justice systems are essential to human, social and economic development everywhere in the world, and Canada has an important role to play in their enhancement.

My conversion to the cause of international justice came to me rather late. Certainly, I had participated in international legal conferences over my 18 years on the bench before becoming Chief Justice. Certainly, I believed that justice everywhere was important and that we in Canada owe the world a duty to advance it. But not until last year, when as Chief Justice I found myself meeting with other Chief Justices here and abroad did I realise the full significance of justice as a global commodity and how much other nations look to Canada in their quest to achieve it.

Since becoming Chief Justice in January 2000 I have visited India, Morocco, China, Korea, Singapore and Israel. We have also welcomed to Ottawa the Chief Justices of Australia, India, New Zealand, South Africa, Hong Kong and France, and hosted study groups of judges from China, Russia, Croatia and India. Along the way jurists and lawyers from a host of countries around the world have visited our Court and other Canadian courts in order to learn more about our judicial system.

All these people stressed two things. First, they were determined to improve the legal and judicial systems in their own countries. Second, they admired the Canadian system of justice and looked to us for ideas and assistance. In the remainder of my time, I will comment briefly on each of these points.

The Worldwide Quest for Better Justice Systems Confronted with the seeming preoccupation everywhere on the globe with better justice, I found myself asking two questions that mirror the message other countries are sending us. First, why is the world so interested in better justice systems, and more precisely, why now? Second, given the interest, what are the hallmarks of a good justice system? How precisely can we in Canada help? What have we to offer?

On the first question of the reasons for the current interest in justice, I came to the conclusion that the answer lies in the relatively recent recognition by authors, international organisations and countries throughout the world that without effective justice systems and the rule of law they cannot achieve human, social and economic development.

A consensus seems to be emerging among those who study the conditions for national progress that an essential condition of progress is the rule of law and an effective, independent, justice system. It has long been accepted that without the rule of law and effective justice systems, human rights and social advancement may falter. But in the past decade it has also been recognised that these are essential to economic development.

European scholar Michel Herbiet, for example, suggests in ""Rule of Law and Transition to a Market Economy"" (European Commission of Democracy Through Law, 1994), that success in a market economy requires laws that promote two values-freedom of contract and equality of parties before the law. Implicit in this conclusion is the need for the rule of law and an effective justice system without which laws lose their force and function.

Similarly, Harvard economist Robert Borro argues that the key contributions a government can make to economic growth are:

• providing and encouraging secondary and postsecondary education;
• providing and encouraging effective health care; • promoting birth control;
• avoiding non-productive government expenditures;
• keeping inflation below 10 per cent per annum; and last but not least
• enforcing the rule of law.

The rule of law and an effective judicial system to resolve disputes is essential to encouraging investment and promoting growth. Absent the rule of law and independent, impartial courts, investors will not invest and the economy will not grow.

International organisations have taken up the same theme. The United Nations is increasingly emphasising the need for the rule of law and effective independent court systems in promoting human rights and improving the position of women, children and the millions of human beings marginalised by poverty, war and crime. The seminal document of the rights revolution was the Universal Declaration of Human Rights, whose 50th anniversary the world recently celebrated. The Declaration of Human Rights gave rights to individuals for the first time in international law. In the years that followed, other international declarations of rights were introduced, including the United Nations Declaration of the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.

On the economic front, the World Bank is now stressing that underdeveloped countries must improve their legal and judicial systems. The World Bank is insisting that these countries improve their legal systems as a condition of receiving aid and is underwriting projects in judicial education around the world. And the influential Davos group includes justice among indicators of national and economic progress, ranking nations by reference to their justice systems in its annual survey.

In short, justice is no longer just a matter of rights and fairness; it is increasingly seen as a basic condition of economic progress. When institutions like the World Bank talk, the world listens. Suddenly I understood why so many countries on so many continents were avidly interested in better justice.

This brings me to my second query: what are the building blocks of an effective justice system? What do the countries that lack good justice systems need to do to achieve them? The answer is that they must focus on two simple things-good laws and good procedures.

Good laws respect equality and freedom of contract, as Herbeit points out. They promote opportunity-not just for a few but for all. They discourage discrimination. They enable people to realise their full potential. This produces individual, social and economic benefits. In addition to these content-related attributes, good laws possess certain formal attributes. They are clear. They are accessible. They strike a healthy balance between stability and change to meet new needs. In these ways good laws allow people to plan and invest in their own and their nation's potential.

Good procedures are as important as good laws. Good procedures are concerned not with the content of the law, but with the process of the law; in short with the rule of law. No matter how good the content of laws, unless there is a transparent means of enforcing them independent of influence of private powers and government, they will be undermined. The law will no longer govern; individual fiat and arbitrary power will take its place. The rule of law is more than rules; it requires an independent legal profession to bring violations and disputes to court and independent judges to try the cases they bring forward.

The new democracies of the former Communist block in Europe as well as countries in Asia and Africa face enormous challenges in putting in place good laws and good procedures.

First, good laws. Many ex-colonial countries have updated legal systems inherited from pre-independence colonial regimes; for them the task of getting a good legal system in place may be manageable, although even here the task is difficult, as the recent decline of Zimbabwe's once proud justice system attests. However, other countries are not so fortunate. Former communist countries often have found themselves substantially replacing their laws with new, democratically oriented laws. Some did not even have a coherent legal system. For example, the communists who came to power in China 50 years ago saw the law as the tool of the defeated Emperor and the power elites who had ruled China in centuries past. They largely dismantled the legal structure. What grew up in its place was again rooted out in the cultural revolution. With the opening of China in the 1990s came the realisation that good laws were essential to the country and its economic growth. This has led to a massive programme of law reform-new criminal laws, a new contract code and a new law of trusts now in the making. The list goes on and on.

Second, good procedures. Here the task may be even more difficult than that of enacting good law. People from emerging democracies may find it difficult to understand what judicial independence means, much less how to put it in place. The concept of judges deciding cases against the ruling party strikes many as impossible. The idea that a judge would not at least consult the minister involved on a serious state matter may seem even stranger. Those in power equally may have difficulty understanding why they should not demote a judge who rules against the government or send him or her to some remote backwater, or why they should not issue policy directives to the courts, as happens for example in China.

We take judicial independence for granted. It has been the lynch pin of the Anglo-Saxon legal tradition for over six centuries, as exemplified by a story told of King Henry N and his son Prince Hal, later Henry V

In the year 1401 A.D. during the reign of Henry N, a convicted wrongdoer, who happened to be a servant of Prince Hal, came before William Gascoigne, the Chief Justice of England, for sentencing. Young Prince Hal marched into Court and ordered the officials to release the prisoner. The Chief Justice refused. ""Your servant has broken the law,"" he told the Prince, ""and must be punished by the law. If you wish to save him you must go to the King, your father and beg mercy from him. He can grant it if he thinks fit. Now I pray you leave the court and allow me to deal as I think just with the prisoner.""

The young Prince flew into a rage and struck the judge. The Chief Justice, however, remained unmoved: ""Sir, remember that I am here in the place of the King, your lord and father. In his name, I charge you to give up your sword for your contempt and disobedience. I send you to prison. There you shall remain until the will of your King shall be known."" Apparently, the Prince's anger vanished at this. Taking off his sword, he bowed humbly to the judge and went quietly to the prison.

We're not sure how long the King left his son in gaol. But we have in ballad form an account of what Prince Hal, now Henry V, said to Judge Gascoigne on the occasion of his retirement from the Bench:

Happy am I, that have a judge so bold, That dares do justice on my proper son; And not less happy, having such a son, That would deliver up his greatness so Into the hands of justice.

While we have lived with the concept of judicial independence as the bedrock of the rule of law for a very long time, the same is not true for much of the world, where people have a hard time understanding judicial independence, much less implementing it.

Old habits of corruption may prove hard to break and confidence in judicial impartiality hard to instill in a doubting population. A country may set up a judicial system that on paper seems independent. It may tell people that they can trust the judges. Yet the people, after filing their writs at the front door of the courthouse, may still slip round to the back door for a private word, or a gift, for the judge. These countries find themselves caught in a vicious circle. Without confidence in the judicial system, more transparent legal processes have difficulty getting off the ground. And without transparent legal processes, how can they hope to build confidence in the judicial system? The western observer is struck anew by the importance of what we take for granted-public confidence in the legal process. Only when it is absent does one realise how vital it is to the rule of law and how difficult it is to achieve.

Another problem is to establish an educated, legally trained judiciary. Consider the situation of China. Three years ago China amended its constitution to expressly endorse the rule of law. During the last decade, China has embarked on an ever-accelerating programme to revamp its courts and improve the quality of its judges. Thousands have come to North America and Europe to study western legal practices. Yet in a country of 1.3 billion people, the effort inevitably falls far short of what is required. On our visit to China last June, Premier Zhu Rongi asked me what cities we were visiting. ""Beijing, Shanghai, Szenchen and Hong Kong,"" I replied. ""Ah,"" he said, ""you will see the best."" In the countryside, he went on, things were very different. ""We have 180,000 judges in China, and only 10 per cent of the them are legally trained,"" he advised. ""Judicial training is a number-one priority.""

Everywhere in the world, people are recognising that the rule of law and justice is impossible without legally trained judges. Consequently, training judges has become something of an international industry in which Canada plays an important part. Private governments and international organisations like the World Bank are funding programmes to train judges in Europe, Asia and Africa. Through these programmes, public agencies, law firms and judges themselves are at work in a global effort to upgrade the qualifications of judges.

Two years ago, before I became Chief Justice, I visited China for the first time. I went as a tourist. On the last night of my stay in Beijing, I received a call from the Canadian Embassy, which had learned that I was in the city. ""Would I like to visit the Beijing Judges College?"" they asked. I had nothing particular planned for my last day in the city and agreed. The next morning I found myself being driven to a campus outside the city about the size of a small Canadian university. There a professor, a Canadian, introduced me to a class of 22 Chinese judges. These judges, who at best could only have learned late the night before that I was coming, stood up one by one and told me about papers they had written on cases from the Supreme Court of Canada. The topics covered the contemporary legal gamut-judicial independence, judicial review, criminal law, human rights, women's rights and so on and on. I was astonished at the sophistication of their understanding and analyses of our law. I was also embarrassed that I had simply assumed, if I thought about it at all, that people in China did not care about the same things I cared about-just laws and a fair and transparent legal system. Certainly, as the Premier admitted to us a year later, the challenges to one day establishing an independent and educated judiciary and a transparent legal system in China are enormous. But a start is being made, and that, it seems to me, can only be good.

The more I learn of the challenges developing countries face in establishing the rule of law, the more impressed I am with the importance of a fair and transparent legal process and an independent judiciary. Indeed, I am convinced that if fair processes and an independent judiciary can be established, good laws are sure to follow. A young judge in China who had trained abroad put it to me succinctly. ""Once we establish judicial independence for commercial matters, fair process in matters of human rights will follow.""

This led me to ponder the history of our own rights. In England, an independent judiciary and fair legal system came long before democratic government and full recognition of human rights. Could it be that the best way to bring about progress toward democracy and universal human rights is to first and foremost establish open and independent courts? The idea that the humblest person can go to the court, be listened to and receive a fair and impartial decision against a more powerful person or even the state is an empowering idea. Once people understand they have this power, can democracy and human rights be far behind?

Canada's Role in Enhancing Global Justice

This brings me to the second proposition I put at the outset: the assertion that Canada has an important role to play in helping countries throughout the world improve their justice systems.

I do not suggest that Canada is the only country that developing nations are looking to for models and assistance in improving their laws and their justice systems. There are many fine justice systems in the world and developing nations comparison shop and take good ideas where they find them. Dominant influences are often related to historic, cultural and linguistic factors. Thus many eastern European states have adopted the German judicial model as their primary inspiration; French African states tend to look to France; British African states look to Great Britain and the Commonwealth. Yet the same countries often look to Canada as well.

The reasons are many. First, the world ranks Canada's justice system highly. Canadians are a modest people, popular wisdom has it. Our unawareness of how the world sees our justice system arguably bears this thesis out. The Davos Institute in its report for the year 2000 ranks Canada's justice system second in the world, just behind Denmark, a smaller, less complex country. And if Canada is ranked by the United Nations as the best country in which to live, one reason lies in our fair, transparent and empowering legal institutions. My point is not to blow our collective horn, but simply to suggest that one reason the outside world sees our country as a place to look in its quest for better justice systems is simply because from the outside, our system looks pretty good.

Second, Canada has a non-colonial and hence non-threatening international image. We are not a big power. We recognise and respect cultural diversity. We are less likely than some to insist that our way is the only way and to recognise that each country must find its own path. At the same time, we have developed an active practice of looking to other jurisdictions to see how they settle problems-what we lawyers call comparative law. We are, in short, a comfortable fit.

Third, Canada's legal traditions constitute a rich and varied store from which to borrow. If you're looking for a legal shopping mall, we just about have it all. We have the basics-good laws and a strong independent judiciary. But beyond this, we are well placed to offer special assistance because of our unique historical experience.

If you are a bi-jural country with different legal systems, Canada, with the civil law in Quebec and the common law in the other provinces, can help. And even if you are not bi-jural, whatever your tradition, civilian or common law, you can find it in Canada.

Again, if you're looking for a human rights tradition that combines the best of Europe and North America, Canada is the place to come. Our Charter, a uniquely cosmopolitan document, was written to preserve the individual rights so important in the United States while acknowledging that sometimes rights must be limited by each other and by greater public goals. It is not an accident that rights law in Canada, Israel, Germany, the European Court of Human Rights at Strasbourg and South Africa, dip so frequently into each other's jurisprudence. Viewed from a global perspective, Canada is very much in the mainstream of human rights law.

Finally, if your problem is how to use the law to reconcile conflicts in a multicultural society-a problem many developing countries face-Canada is a good place to come. Since the Quebec Act in 1775, we have been using the law to protect minority cultural, religious and linguistic rights in a peaceful, respectful way. And we have been successful. We have had tense times, yes, and doubtless will have more. But the fact is that over the course of two centuries we have built and maintained a nation that offers its citizens peace, security and an enviable quality of life. That is success. As John Ralston Saul points out in Reflections on a Siamese Twin, Canadian history in fact goes back a long way. It is a history of successful accommodation. And the main instrument in achieving that accommodation has been the law.

Last year the Supreme Court of Canada marked its 125th anniversary. We held a symposium to mark the event and to look back at where the Court had been and ahead at the Court's future role. One of the conferenciers was Michael Ignatieff. He had this to say on why the world looks to Canada when it comes to justice: ""One way to explain the growing international importance of the [Supreme] Court's decision [on secession] is negatively: we have the problems the rest of the world needs to solve... We have 140 years of experience trying to make a multi-national, multi-lingual federation work. Our jurisprudential thinking reflects the imprint of this struggle. This experience is suddenly very relevant to the new states that are trying to hold differing nations and languages together inside fragile legal orders. Our very vulnerability as a nation, our constant need to improvise group rights solutions to keep the country together, turns out to be a comparative advantage in the world market for legal expertise. We've become experts in the new arts of constitutional survival.""

Yes, justice, on the eve of the 21st century, is a global business. And Canada has an important role to play in its development.

The appreciation of the meeting was expressed by John A. Campion, Partner, Fasken Martineau DuMoulin LLP and Past President, The Empire Club of Canada.