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NOTES FOR AN ADDRESS
BY
THE HONOURABLE ANNE McLELLAN
MINISTER OF JUSTICE,
ATTORNEY GENERAL OF CANADA
AND
MEMBER OF PARLIAMENT FOR EDMONTON WEST
AT
THE CAMBRIDGE LECTURE
Cambridge, England
July 12, 1999

As delivered

Introduction:

To begin, I would like to congratulate the Canadian Institute for Advanced Legal Studies on the success of this lecture series. It continues to be an important forum for discussion on issues confronting our legal institutions. It is a credit to the organizers of this event that it provides such a high degree of scholarship and debate on current legal issues.

It is, of course, a great pleasure to be here with my colleague, the Minister of Finance, and I listened with interest this morning as he spoke eloquently of the importance of the rule of law in the creation of a new international financial infrastructure. Paul, I think you might even make a good Minister of Justice some day.

It has been a little more than two years since I became Minister of Justice. Former British Prime Minister Harold Wilson once said that in politics a week is an eternity. Two years into this job let me tell you that there are days that seem like an eternity. However, most days, I think I have the very best job in the Government of Canada and therefore, I thought this might be an appropriate opportunity, with so many members of the Bench and Bar here tonight, to reflect on the Justice portfolio, as well as discuss with you some of the challenges I see ahead for all of us who are involved in the justice system.

Some Observations:

First, there is a growing realization among decision-makers and the public that the courts are becoming an increasingly important branch of government. Controversial policy issues -- such as same-sex benefits, euthanasia and child pornography are but a few of the many complex issues being put to the courts for resolution.

This has given rise to an increasingly public debate about how the courts should go about discharging their responsibilities, especially those given to them by the Charter of Rights and Freedoms.

Second, concerns are growing about the continued efficacy of the litigation process, including the nature and number of issues that are being brought before the courts, the length and complexity of judicial decisions and the increasingly high cost of litigation, to both parties and government.

Third, citizens are less willing than they once were to accept uncritically, and without comment, the decisions and actions of authorities. The justice system is no longer seen as being within the exclusive purview of those who run it police, prosecutors, judges and lawyers.

Fourth, in the area of criminal law, there is a tension between, on the one hand, demands for more aggressive law enforcement (often, reflected in a cry for tougher penalties) and, on the other hand, a growing acceptance of the need for greater emphasis on the identification and amelioration of the root causes of crime.

Fifth, globalization and technology are having an impact on law and the administration of justice. Take, for example, crime. Crime follows opportunity. Modern society presents opportunities for new crimes and new ways of committing old

crimes often at long distance and across borders using telephones or the Internet. And, there are new ways of concealing evidence, laundering money and committing fraud. Hate crime and the proliferation of pornography on the Internet are of growing concern.

The police community asks for legislative action; the business community asks not to be disadvantaged by new laws that might leave them behind in the global market place. And we must be cognizant of individual constitutional rights which prevent simplistic and draconian responses to these emerging challenges.

Sixth, in international law, Canada and much of the world are engaged in the "internationalization" of human rights by this I mean the active promotion and implementation at the international level of legal instruments designed to further human rights.

For example, the UN established the International Criminal Tribunals for the former Yugoslavia and Rwanda. In addition, more than 80 nations have ratified the statute creating the International Criminal Court, an initiative in which Canada was at the forefront.

These are encouraging signs of progress towards holding individuals accountable under international law for war crimes and crimes against humanity. However, we must be mindful that the movement towards internationalization will be resisted by those who see it as a threat to the sovereignty of nation-states.

Finally, as I am sure you have all observed, public debate is channeled through, and shaped by, the media. In the process, some voices are amplified and others lost. Nuance gives way to the dictates of the 10-second sound bite. The many shades of grey we experience in daily life, with their possibilities for healing and compromise, can be overshadowed by stark representations of good and evil.

Justice in the Future: Democratization:

The trends I have outlined suggest a number of important themes for justice in the next millennium. I could, for example, speak of the need for a balanced approach to criminal law, or about the need for radical initiatives to fight organized crime, or about the need for a new international legal regime such as that represented by the International Criminal Court. In the time I have left, however, you will be relieved to know that I will restrict myself to one theme -- the democratization of the justice system.

By "democratization", I mean both a realization that all elements of society want to participate in the justice system and the justice system's clear responsibility to respond to that desire in appropriate and sensitive ways. This means all of us must be willing to listen without fear and suspicion and to make real changes to address the public's skepticism and concerns.

For, ultimately, in a free society the effectiveness and legitimacy of the law as a social institution depends upon the consent of its citizens and on their respect for, and confidence in, the way it is administered.

If the public's expectations of the justice system are not met, they will become disconnected or disengaged from it and will become cynical about its operations. The popular acceptance of our justice system can never be assumed.

Today, people are more educated, articulate, and sophisticated, "more plugged in", than ever before. They are better informed, through an ever-increasing variety of information sources over which traditional elites have little control. Decision-making, whether in relation to the law or other aspects of their lives, will no longer be the province of a chosen few.

Canadians want to be informed about key aspects of every issue that affects them, their families and their communities. They want to help shape policy choices. In short, they want the freedom to choose. Just as business has found it necessary to tailor products to the different needs and preferences of consumers, governments are finding that "one-size-fits-all" prescriptions to complex policy issues and service delivery are no longer acceptable or workable.

I believe there are three central themes which animate the demand for the increased democratization of our justice system. They are: community, accessibility and accountability.

    
      Community involvement is crucial to developing effective responses to the issues confronting the justice system. For example, in the area of crime prevention, we have found that success depends on community involvement both in the identification of concerns and needs and in the design of the programs to address them. Canadians want the opportunity to invest their time, effort and experience in making their communities safer.

When crime prevention projects are developed and run at the local level, people have an opportunity to take ownership of the problems that are most troublesome to their communities. We have seen this work well in Aboriginal communities, with dramatic results in terms of empowerment and healing.

Restorative justice approaches, which aim at resolving issues by involving families, victims and communities, also clearly build support for the justice system.

Obviously, restorative programs can never replace the criminal justice

system and the effect on victims needs to be carefully considered in each instance. However, there is no doubt that community involvement in the handling and resolution of at least certain, criminal matters leads to greater acceptance of outcomes.

The second aspect of democratization -- accessibility -- relates to the development of legal policy, access to the law and access to the legal system itself.

From the perspective of policy development, increasing demands for public involvement in the decision-making process have led, albeit slowly, to the conclusion that an open process in which there is real engagement of citizens not only leads to better acceptance of the results but also leads to better policies.

In terms of access to the law, a key task is to build on existing efforts to make laws understandable to those who are affected by them.

This includes using plain language in the drafting of legislation and regulations and in legal instruments such as contracts. Access to the law also includes making decisions available quickly and inexpensively via the Internet, an area in which the courts have shown leadership. And it includes making the law more understandable to those who face barriers of culture and language, such as recent immigrants and Aboriginal people.

Turning to accessibility of the legal system itself, we clearly have a mandate to ensure it is open to those who are directly affected by it.

For example, over the past ten years new questions have been raised about the role of victims of crime. Isn't a victim more than a witness with a greater role to play than simply providing evidence in a contest between the state and the accused?

My own experience over the past two years has convinced me that victims must have a larger role in the criminal justice system and that we must ensure that those who are victimized by crime are treated with dignity, compassion and respect.

Enhancing accessibility also includes a redoubling of our efforts to provide Canadians with options for the timely, effective and cost-efficient resolution of disputes. We must re-think our current court processes with an eye to these goals. Clearly, any solution will entail the utilization of alternative dispute resolution mechanisms.

And, it will also require governments to consider ways to minimize the need for formal dispute resolution. For example, by writing clearer laws, by avoiding regulatory prohibitions in favour of economic incentives, and by using an array of other instruments such as information and education, mediation and parenting plans in areas like divorce and custody.

The third aspect of democratization involves accountability. In Canada, as in most other countries, there has been a strong emphasis in recent years on the need to hold governments accountable.

Better-informed citizens demand of their governments that their policies and programs are relevant and effective. Governments will have to devise ways to express their objectives, to measure their performance and to publish results so that the public can judge for itself what works and what doesn't.

  It seems to me that the same comments can be made in relation to the other players in the justice system such as the courts, the legal profession and the police. Increasingly, they also have had to focus on issues of public accountability. And this will continue to preoccupy them in the foreseeable future. I could mention the establishment of police complaints commissions; the efforts by individual courts and by judicial councils to provide more information to the public on court operations and on judicial discipline; the examination of the role and practices of prosecutors; and the work of the CBA and law societies to consult with and listen to the public.

And, as a former law teacher, I feel compelled to add that the law schools also bear a responsibility in this regard, in terms of the need to ensure a diverse student population, a socially relevant curriculum and a high level of competence from their graduates.

Conclusion:

      I will end by going back to where I began: my two years as Justice Minister has been challenging and interesting. They have affirmed for me what I knew as a law teacher: that justice in a modern society is not the exclusive domain of elites, whether political, professional or social.

      To be meaningful in the day-to-day lives of citizens, justice must be rooted in community, fostered by accessibility and made manifest by public accountability.

      This, I believe, is our challenge for the 21st century.

      In closing, I wish you a productive and interesting conference. And, I thank you for inviting me to be here among you this evening.

 

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